Takes v. Metropolitan Edison Co.

101 Worrell, 31 A.2d (1968); al. Angier et v. A.2d (1943). of error and points appellants’ evaluated Having closely we, accord- appellants, not avail relief finding they do court. by the lower orders entered affirm the ingly, affirmed. Orders

655 A.2d TAKES, Stephen and Catherine M. wife, Takes, Appellees, his

C. v. COMPANY, EDISON METROPOLITAN Appellant, Corporation, v. Company. Painting TAKES, Stephen M. El Greco d/b/a wife, Takes, Appellants, Takes, his Stephen C. M. Catherine v. COMPANY, EDISON METROPOLITAN Corporation, Appellee, v. Painting Company. TAKES, Stephen El Greco M. d/b/a Pennsylvania. Superior Court of Argued Sept. 1994. 22, 1995.

Filed Feb. Richard T. Wentley, Pittsburgh, for Metropolitan Edison Co. Shipman,

Ronald W. Easton & C. George Diamantopulos, Pittsburgh, for Stephen and Catherine Takes. ROWLEY, P.J., WIEAND, CAVANAUGH,

Before McEWEN, CIRILLO, OLSZEWSKI, BECK, KELLY and POPOVICH, JJ.

CAVANAUGH, Judge: Takes, In this case the appellees, were awarded for verdicts $1,460,414, compensatory damages totaling including $500,000 pain and suffering for Mr. $150,000 Takes and loss damages consortium for Mrs. Takes. An $3,000,000 award of was made for A punitive damages.1 post-trial core issue appeal motions and on in this court is the propriety of the charge special court’s and a interrogatory given the jury they is, relate to the definition of damages —that whether the court improperly allowed the consider negligence standards in their determination of entitlement to (which punitive damages. The trial court all post- denied Edison) verdict appellant, motions deter- mined that the appellant preserved had the punitive damages review, issue for its post-trial but found that there was no charge error in the interrogatory. considering

Before appeal, issues on we must determine the punitive damage whether definition issue has been pre- $4,975,730.35. 1. delay damages brings The award for the total v. Dilliplaine The decision for our consideration. served (1974) Co., A.2d Lehigh Trust Valley trial counsel part, by an effort motivate inspired, at least error at the preventing court in to assist the diligent to case, In pivotal corrected. that stage trial it could be where the “basic of usage the court eliminated the supreme achieving appellate doctrine as a means fundamental error” no decision as to The court made review of trial error. court court objection to trial necessary preserve to an the specificity issue the finding no that the suggestion error and offered in concerns given by case preservation should be influenced judicial economy. error committed will conclude that the court Since we negligence it the to consider improperly permitted in that to dam- right punitive in of the the determination concepts appellant if the present the record to see ages, we examine morning On the any review of this issue. appellate has waived to in with counsel February the court met chambers an extended sheet. There was and verdict charge discuss at- damages. Appellant’s respect punitive with to discussion damages strenuously against any punitive argued torney all, alternative, that, if and, given at argued in the charge appellant wherein restricted a situation should be circumstances, dangerous under known urged to do his work thereof, three- of an extended at the conclusion support and in thusly: concluded page argument,

Therefore, since I think the position, that Judge, taking this charging they makes it is should be only scenario that you allow just part let me finish this way —if —and this blanket fact combination with to wander around in a willful charge: you they negligent, do find acted in- the defense prejudicial manner is reckless com- any thinks suggests stance —because it Court choose could they would bination infer facts the those negligence [sic] wanton and reckless facts from the case. just and that’s

[emphasis added]

Thus, it is clear that objection counsel verbalized an ato charge permit which would elucidation of negligence concepts damages charge.

Later, court was attempting through to move exhibit evidence and a final collation of jury interrogatories, counsel stated: Honor,

MR. objection TAYLOR: Your I suppose my give the Court’s decision the question of punitive dam- ages my objection saved at this for all the point reasons that I have advanced.

During the course of the charge:

THE I COURT: will do that.

MR. objection, My only your Honor, TAYLOR: Iis don’t you think that have exactly defined the extent that you’ve reckless, got to togo show [sic] then, And during and at the conclusion of charge the which included this language:

A person’s conduct is outrageous, among and included reckless, that would be negligent, wanton, willful and when person that acts with a bad motive when he acts with reckless indifference to the interests others. That is the definition with which approach that issue. added)

(emphasis (In conclusion): response, to request for additions to charge at Honor,

MR. TAYLOR: Your I the restate Defendant’s objection to the Court’s on charging and reckless intentional damages. In order appreciate danger to the inherent any attempt to undertake an independent and subjective reconstruction the record in to order discover the thought critical processes counsel, of the trial court and we must first a examine crucial from excerpt the trial court opinion. The court stated:

5¡c ^{[*] [*] [*]} sjs ^[*] fully To appraise the breadth of defendant’s objection preserved, following record must also be addressed: that my proposition to happens

MR. TAYLOR: What a fact situa- is limited to of the reckless the application if Met Ed (That only could be found recklessness tion? energized deliber- was capacitor knew the personnel not.) it was ately said into going get I’m not thinking. I’m

THE COURT: negli- and the subparts I any more than want that discussion) (Restatement of Met Ed. § 500 question gence in there (punitives) I put if find it I think —if they And (recklessness) held on the held, going be it’s and it’s case, particular not on a of the of the four corners basis the scenario if finds that And the court factual issue. Met- at worst is that by which is defined evidence (sic) recklessness, the punatives then Ed support does not say evidence four corners of the If the entire get struck. (sic), stuck. you’re then punitives yes, that it does sustain that frames point charge I TAYLOR: have MR. (deliberate misrepresentation that the issue that satisfies as) find, on can only basis which energized state it, exception. I take but would protect and that will says only that not All right. THE Defendant COURT: under these submission object the Defendant does but more so jury, to the of recklessness facts of the issue submitted, it could be submitted that, if it to be were Northampton in the limited that defined basis case; positive had namely, that there County capacitor employees Met-Ed instruction it, painting Plaintiff was de-energized at the time I when, fact, it Am correct? energized. in was Yes, Judge. TAYLOR: MR. question, I I the reckless

THE And if submit COURT: that, exceptions noted. your [sic] and going am not use (N.T. in form. general I it the standard would submit 661-663). 1992, 26, February pp. expressed objection primary

Thus it is clear Met Ed’s around Met revolved preserved trial and intended not lie absent damages would punitive Ed’s that contention knowingly told agent Met Ed’s by jury that finding a no plaintiff the capacitor that was when de-energized he (N.T. it rejected

knew was not. The court that contention. 661-662). 26, 1992, pp. Having Feb. determined Met preserved objections Ed to the jury charge punitive on damages, as well as to interrogatory concerning we now punitive damages, address the substantive issues by raised Met Ed.

[*] ^{[*] [*]} # ^{[*] [*]} Accordingly, we have the trial court’s own conclusion from the record before it. exact

Although the of the meaning between exchange Taylor obscure, Mr. is the court somewhat it clear is the trial court this a preservation by recalled as broad counsel of objections to errors and in shortcomings charge punitive interrogatory damages.2 It would be an inappropriate reviewing function of a court to substitute its subjective own interpretation of in the record order to find when it objection waiver was “clear” to the trial court that the as to damages “preserved”.

Similarly, when the record itself is sufficient (as demonstrate preservation an issue present situa tion), it would be for us as a inappropriate reviewing court to subjective as to speculate thought processes of counsel. Dilliplaine The wisdom of the rule is that it is rule of which discourages fairness gamesmanship as a triál tactic. A may not silent party remain and take his chances on verdict and then complain that is adverse. by Carter Carter v. 409, Corp., (1992), United States Steel 604 Pa. A.2d 1010 denied, denied, reargument certiorari In S.Ct. en 186. forcing policy, have not required precision unnecessary language fairly order find preservation. v. Caldwell City Philadelphia, 358 Pa.Super. (1986), A.2d denied, (1987) (no appeal 517 Pa. 535 A.2d 1056 waiver that, original have 2. We examined the quoting record and find above, excerpt opinion reproduced from the record his the court engaged degree paraphrasing in a terminology from the exact to be original in the found record.

Ill charge in relationship” “special use term reason of failure to 178, Houdaille, Pa.Super. 364 v. Powermatic request); Eck (1987) by, inter charge, preserved (challenge A.2d 1012 527 conference); alia, Mor- inchambers during of mention issue (1988), 512, House, 547 A.2d 1180 ganstein Pa.Super. v. 377 (1990) (challenge dismissed, 498, 581 A.2d 1377 525 Pa. appeal objection by portion jury charge preserved of to substantive Inc., Co., v. 312 confusing”); Kroger Brancato that “it was (1983) 448, (finding by no waiver A.2d 1377 Pa.Super. 458 in exception charge.) of to error specific reason of lack in on the issue waiver An examination of authorities objective present fair and review of the and a Pennsylvania court to the conclusion that the trial inescapably record lead any objection had waived rightly appellant concluded incorpo concerning the content of the instruction for the award concepts a basis negligence ration of is defer An added reason that a certain punitive damages. on the to the trial court’s determination paid ence should be other, court, who since it is the trial and none issue of waiver which counsel was judge in the extent to position is objec detailed making highly from encouraged discouraged during time-pressured the course of tions on the record charge concerning proposed highly technical discussions trial court which can best major case. It also the terms, is with objection, general somewhat determine when an objections encompass specific more understood to mutually thereof. might part be made as which objectively record this case conclude that the damages definition issue was that the demonstrates trial, objections post-verdict inclusion by preserved by motions, in the present appeal. assertion In support merits discussion. postulate

One additional Nolan, 418 waiver, Pa.Super. v. has cited James appellant his (1992) Brooks, Pa.Super. v. 425, and Smith 614 A.2d 709 denied, (1990), 592 A.2d appeal A.2d 926 (1991) may appellate that an court proposition when the trial valid claim trial waiver overlook a possibly post-trial court on motions chooses address the issue. The counter-argument is that deference shown in Nolan and cases, is Brooks not here since in appropriate those excused waiver resulted consideration of which an issue did reversal, not necessitate thus defining Dilliplaine this area judicial above, as a rule of expediency. As set forth conclude that there was effective preservation of and, therefore, damages error at trial unnecessary to find Moreover, excused waiver Nolan and Brooks. our have frequently rejection courts countenanced of a waiver argument where result is reversal or the of a award new Quaker trial. Loos and v. Dilworth State Oil Refining Corp., also, Pa.Super. 477, (1985); 347 500 A.2d 1155 See Eck v. Houdaille, 178, Powermatic Pa.Super. 364 527 A.2d 1012 (1987) (waiver rejected argument trial granted) Caldwell —new City v. Pa.Super. 406, 358 Philadelphia, 517 A.2d 1296 denied, (1987) (1986), (trial appeal 597, 517 Pa. 535 A.2d 1056 Division, reversed); court v. Bozzo Electric Weld 283 Pa.Su- 35, per. (1980), affirmed, 617, 423 A.2d 702 495 Pa. 435 A.2d (1981) (waiver 176 argument rejected and new trial —reversed awarded); House, Morganstein 512, v. 377 547 Pa.Super. A.2d (1988), appeal 498, 1180 Pa. dismissed 525 A.2d 581 1377 (waiver (1990) rejected and trial granted); Cagnoli new v. Bonnell, (1992) (waiver 199, 531 Pa. 611 A.2d 1194 rejected— trial); judgment pleadings reversed —remand for Blum v. Pharmaceuticals, 151, Merrell Dow 385 Pa.Super. 560 A.2d (1989), (waiver affirmed, 97, (1993) 212 534 Pa. A.2d rejected argument trial granted); Boscia v. —reversed—new Massaro, 271, Pa.Super. (1987), 529 A.2d 504 appeal (1988) (no denied, 620, 538 A.2d 874 waiver found— affirmed). also, Markets, new trial award See Hall v. Acme (1987) 199, 110 Pa.Cmwlth. 532 A.2d 894 Summit Fasteners v. National, (1991). Harleysville 410 Pa.Super. 599 A.2d 203 We conclude that the issue of propriety the punitive damage charge duly has been preserved for our consideration. proceed to the merits. utility which Edison is a Metropolitan Appellant/defendant In the fall of Pennsylvania. to eastern supplies electricity of its to have several Metropolitan Edison decided Stephen painted. Appellee/plaintiff electrical substations painter, as an industrial experience had thirty years’ Takes in west- power electrical stations including experience painting Takes, El company his Greco through Mr. Pennsylvania. ern painting number submitted the lowest bid Painting, in the Edison substations Easton de-energized Metropolitan Metropolitan Edison could area. The substation which one contractor; Mr. to a different de-energize was awarded de-energized equipment. painting Takes bid on contract on the Edison Mr. Takes the awarded began in substations, painting October de-energized completed crew had five of 1987. Mr. Takes his the they work on Dock Street sub- substations when started Takes, Mr. the substation station Easton. Unbeknownst to 4,800-volt The capacitor. had for a de-energized except been about as to Mr. Takes was warned parties disagreed whether off, nor roped but structure was not capacitor, the live the the Takes had climbed any warning signs posted. were Mr. it when an painting and was capacitor’s housing structural fell perch. knocked him off his He enormous electric shock feet, Fortunately, he was ground ten head first. hitting wearing his hardhat. injuries from the electric shock

Mr. Takes suffered serious left destroyed finger The the middle his fall. current black, leathery also hand, to be left amputated; which had fall body. on both sides his The entrance and exit wounds his Mr. Takes scapula. two of ribs and fractured broke his well, from injuries other and now suffers severe sustained Syndrome. depression and Post-Traumatic Stress evidentiary ruling Metropolitan first an which address challenges. Edison

I. negli- comparative Edison tried establish humming was and vibrat- gence by showing capacitor ing, so Mr. Takes should have known it energized was and not have housing. climbed its was taken to view the substation, state, Dock Street but in its fully energized rather than with all the equipment de-energized except for the one Bartel, Dr. capacitor. Eugene an electrical and the engineer expert, Takes’ testified that the capacitor quiet. Metro- politan Edison rebutted his testimony company with that of its foreman, Heller, Lovene who described how capacitor naturally hummed and vibrated energized. when

Metropolitan Edison wished to bolster this claim with more expert testimony. Metropolitan Edison asked its Dr. expert, Terence Hockenberry, whether he had observed the Dock capacitor Street humming vibrating. The trial court plaintiffs’ objection, sustained ruling Hockenberry’s that Dr. answer would have been both beyond cumulative and of his scope report.

Evidentiary rulings are committed to the sound dis court, cretion of the trial and will not be overruled an absent abuse of discretion or error of law. Movie Distributors Co., Liquidating Trust v. Reliance Ins. Pa.Super. (1991), denied, A.2d 1302 alloc. 604 A.2d 249 (1992). The expert report focused on Mr. Takes’ adherence the pre-determined plan, work and what steps he could have detail, taken to avoid electrocution. Despite high degree report made no mention of capacitor rattle and hum. The trial court ruled from the proposed expert bench testimony would have gone beyond report’s fair scope. 449-453; N.T. at trial court opinion at 19-20. 2/24/92 2/26/93 In considering Metropolitan motions, Edison’s post-trial the trial court also held that proposed expert testimony would have Mr. duplicated Heller’s similar testimony. Metropolitan Edison that argues Hockenberry’s Dr. testi- cumulative, mony would not have been because his credentials stronger are than Mr. Heller’s. We are inclined to agree. Without Dr. Hockenberry’s testimony, Metropolitan Edison had to rebut the Takes’ with expert testimony of their own power station foreman. While we would not Mr. disparage of Dock knowledge Street personal and expertise Heller’s give more acknowledge jury might that a capacitor, we must engineering. in weight to an with a Ph.D. electrical expert Thus, merely have Hockenberry’s Dr. would not testimony Heller’s; it weight Mr. made different. duplicated greater court, however, that the do the trial agree with Dr. beyond scope have the fair of testimony gone would report produced was Hockenberry’s expert report. discovery interrogatories, to the which asked: response Takes’ 2) 1) expert; to use as an Metropolitan who Edison intended 3) or qualifications; “description experi his and the test interrogato ment he will Plaintiffs testify.” relative to which ries 45 and 46. nos. 4003.5(c) limit- acknowledges that rule

Metropolitan Edison scope his testimony to fair Hockenberry’s ed Dr. live 4003.5(c), 42 Pa.C.S.A. This expert PaR.C.P. report. See from prevented an “shall not be expert same rule states that has on matters on which he opinions facts testifying Id. discovery proceedings.” interrogated not been discovery broad parties note six advises to make Explanatory expert’s proposed all of the testimo- inquiries order to force report, prevent surprise and trial. ny into nar- interrogatories the Takes’ were too argues Edison row, permitted have been so Dr. should Hockenberry in his not mentioned regarding other relevant issues testify capacitor’s noise vibrations. report, such as parrot language did interrogatories While the Takes’ 4003.5(a)(1), they enough. were broad we think rule asked, Hockenberry At Dr. was I Now, Doctor, request today Q. my did also at you —and you to the substation did previously you go think —did that capaci- or what vibrations that may note what noise energized? tor made when was

A. Yes. Now, in the capacitor about the shown

Q. talking we’re Takes in- upon which Mr. pictures capacitor and the jured. I’m object this, to going your

[Plaintiffs counsel]: to Honor. It’s outside the fair scope of the report. N.T. at 449-450. At point, the court held a 3/24/92 sidebar and objection. conference sustained the question put

.The to Dr. Hockenberry was whether he observed if energized capacitor the made noise or vibrated. The act of observing disputed phenomenon noting and the experiment, results a test or albeit a simple one. It therefore fell within the ambit of the Takes’ interrogatories, and Dr. Hockenberry was bound to report mention it his if he testify wanted be able to about it at trial. Since the report hum, made no mention of capacitor rattle and proposed testimony would have gone beyond its fair scope and objection was properly sustained.

II. turn We now to the issues involving punitive damage award. Metropolitan Edison that argues the trial 1) court erred in: allowing punitive the issue of damages go 2) to the jury; restricting application punitive 3) damages particular situation; to a fact instructing the punitive could damages imposed for or negligent conduct, grossly negligent nothing when less than outrageous (ie., indifference) conduct conduct evidencing reckless will do.3 The Takes respond alleged errors were either decided correctly or waived.

A. Metropolitan argues Edison that the puni issue of tive damages gone should never have jury. It is well Metropolitan 3. punitive Edison damage also contends that the award excessive, utility process was Metropolitan denied the due of law. develop support Edison does not these contentions at all. We will award, punitive damage therefore note that the large, only while compensatory about twice the amount damage hardly an award — Contractors, relationship. unreasonable Kirkbride v. Lisbon Cf. 97, 102-104, (1989) (punitive 555 A.2d damages 803-804 need not any relationship bear compensatory damages, may but be reduced conscience). they where shock the court’s Since Edison award, any punitive has not offered damage basis a remittitur of the arbitrarily we will not eliminate or reduce it. of outra- damages will lie cases settled that shows behavior, conduct egregious defendant’s geous where of to rights indifference the evil motive or reckless either an (1984); Merriam, 383, 485 A.2d 742 v. 506 Pa. others. Feld 908(2). (Second) negli- Torts, § Neither mere of Restatement culpability sufficient gross negligence, shows gence, nor even v. Coal Continental damage a award. SHV justify punitive (1991); Co., 489, 702 Smith v. Celotex 587 A.2d Grain (1989). Rather, 340, “[p]u- 564 A.2d 209 Pa.Super. Corp., 387 of such a actions are person’s nitive are when damages proper willful, intentional, demonstrate outrageous an nature Coal, 493, 587 supra at conduct.” SHV wanton or reckless A.2d at 704. decision to submit agree with the trial court’s extreme the Given the punitive damages jury.

the of issue high generation and transmission danger inherent the Takes current, owed Mr. voltage Metropolitan Edison electric v. Phila imposes. our law Meehan highest duty the of care 900, Co., 51, 53-55, 902 225 A.2d Electric Pa. delphia (1967). it was Edison does not contend that Metropolitan when Mr. Takes energized state capacitor’s unaware of the v. Field the substation. painting crew began his Cf. 425-426, Pa.Super. Company, Electric Philadelphia (1989) (“If 1170, 1182 actually defendant does A.2d involved, though a reason realize of risk even high degree would, state required the mental position able man in his is Pennsylvania law damages under the imposition punitive Rather, Edison was indifferent Metropolitan not present.”). conduct shows magnitude. risk of enormous Such to a known ignorance, and subjective than higher degree culpability a Coal, supra award. SHV punitive damages See support can (Second) of 493-495, (citing at 704 Restatement at 587 A.2d a). Torts, § comment

B. alternative, jury sought Edison Metropolitan In the if its proper punitive damages would instruction told Mr. capacitor energized, but knew that employees Takes it was de-energized paint. and safe to N.T. 2/26/92 654-657. If jury believed Mr. testimony Takes’ trial effect, support it would the imposition dam- punitive ages. Metropolitan sought Edison to prove that Mr. Takes ignored warnings about the capacitor, so even if the jury found the utility negligent would have no awarding basis for If damages. jury had to believe one or the other events, version of then Metropolitan Edison’s request for a fact-specific . instruction would make sense. flawed, theory Edison’s though, because it

presumes that the had to other, choose one story when presented the evidence supported could have other fact Here, outrage. situations which might given have less credence to both Mr. Takes’ utility’s and the oral testimo- ny, and rely chosen to more on the extensive documentary evidence. This evidence established that through the con- tracting process and from the work specifications, Mr. Takes was led to believe that the entire substation would be de- energized for In painting. less hazardous circumstances a failure to warn might establish no more than mere negligence. live, With a capacitor 5-kilovolt on the premises, could certainly find the sort of reckless indifference which calls for a Hence, punitive damage award. we agree with the trial court that the punitive damage instructions need not have been framed Metropolitan Edison’s intentional misrepresenta- other, tion theory, since reasonable views of the evidence could support a punitive damage award.

C. Metropolitan finally Edison argues that the trial court mis- stated the punitive law on damages its jury charge and in the verdict interrogatories. agree that the court erred in introducing negligence concepts into the punitive is- damage sue.

Verdict interrogatory number nine dealt with punitive dam- ages. During the court’s instruction on the general principles of punitive damages, following exchanges took place: Court, punitive ... The amount of jury]: charging [The of passion not be the result awarded must damages part of the Edison on Metropolitan against prejudice damages and punitive jury. purpose The sole award, if were you an you may which make such purpose punitive an amount such an award set to make outrageous Metropolitan Edison’s punish is to damages, such, and to deter find it as conduct, if were to you of like from others commission Edison and Metropolitan acts. youDo find very question: nine that asks

Question number negligent, grossly in a acted Edison injuries to Mr. causing reckless, or wanton manner willful do, find? damages you if do Takes, you what to the Gentlemen, any corrections suggested are there punitive to the additions or corrections punitive damages, instruction? damages

AT BAR: SIDE your Honor? page, Just to that

[Defense counsel]: Yes, just to that page. THE COURT: Honor, I like to re- you would Your counsel]: [Plaintiffs’ instruction charge standard quest the court 1400. damages, THE I will do that. COURT: Honor, I objection, is don’t My only your

[Defense counsel]: you’ve exactly extent you think that have defined reckless. got go show outrageous is when he person’s

THE A conduct COURT: motive, reckless or he acts with a a bad when acts with indifference, to charge I’m about that. Fine, Judge.

[Defense counsel]:

IN OPEN COURT: ... A Court, charge person’s continuing jury]:

[The that would outrageous, among and included conduct is wanton, person acts or when that reckless, negligent, willful indifference he acts with reckless motive or when with a bad the interests others. That which definition with we approach the issue. added).

Id. at (emphasis 832-834 The jury later returned with its verdict for the Takes. verdict slip read:

QUESTION 9: you

Do Metropolitan grossly find that Edison acted in a negligent, reckless, willful or in causing wanton manner injuries to Mr. Takes?

Yes JX_

No_ If you “Yes” proceed Question answer No. Other- 10. wise, return courtroom. (Answer

QUESTION you 10: if “Yes” to answered 9) Question No.

State the amount of punitive damages you award plaintiff against defendant: $3,000,000.00 Takes

Steve Catherine Takes $_00.00 added). 44,R. Verdict Slip (emphasis The verdict was read open court. Question

[Court number nine: Do you clerk]: find Metropolitan grossly negligent, reckless, acted in Edison willful injuries manner in causing wanton to Mr. Takes? Yes, jury foreperson]: [The we do.

[Court Question ten: State the amount clerk]: damages you award for against Plaintiff Defendant? [Jury foreperson]: Three million dollars.

We have rejected argument that any mistake was waived object Edison’s failure to at trial. In alter- native, argue charge Takes and interrogatories were a correct statement of the law.

121 interrogato verdict charge The trial court’s law, Our though.4 Pennsylvania state correctly ries did not may not damages held that specifically court has high conduct. grossly negligent or negligent, awarded for even Smith, 705; Coal, 495, see A.2d at also supra at 587 SHV outrageous 345, defined 564 A.2d at 211. We have supra at Coal, “willful, or reckless conduct.” SHV ness as wanton 493, 587, number interrogatory at 704. supra at A.2d Verdict had if it a fair of the law nine would have been statement in a Edison acted you asked “Do find that injuries to Mr. reckless, causing or willful wanton manner conjunc jury by Takes?” The trial court misinstructed the the to “grossly negligent” describe tively adding qualifier damages. support punitive which could manner of conduct Likewise, the stan quoted court almost at defense defining outrageousness jury dard instruction from This instruction uses the definition request. counsel’s outrageous of Torts: “A conduct person’s the Restatement acts with reckless when acts with a bad motive or when he he (Second) to the interests of others.” Restatement indifference 908(2), Standard Pennsylvania Suggested § of quoted Torts 1984). Institute, (Pennsylvania 14.00 Bar Jury Civil Instruction adding definition expand upon The trial court chose to “reck The terms adjectives outrageousness. some describe less,” correctly apply, all but “willful” and “wanton” Thus, “person’s that a by telling term “negligent.”5 law, question which accurately instructed is a of 4. Whether the 122, Welfare, Pa. Dept. de novo. v. Public review Morrison (1994). n. A.2d 570-571 suggested that older versions to the instruction note comments 5. “malicious, outrageous string adjectives conduct: used a wanton, define reckless, willful, multiple qualifiers, oppressive.” These correct, juries. on Civil likely to The Subcommittee while were confuse Jury adopted the more concise Restatement’s Instructions therefore language. quoting go beyond suggest judges do should never not mean making a which fear mistake suggested standard instructions for pattern instruc- could Recent research indicates taint verdict. lay juror, judges make incomprehensible should tions can be to the Diamond, English. explain plain See Shari s. an the law in effort Jurors; Majority Although Frequently the Vast Instructions Baffle Them, Show Say They What the Court Tells Studies Jurors Follow conduct is outrageous, and included among that would be reckless, wanton, negligent, willful or person when that acts with a bad motive or when he acts with reckless indifference others,” to the interests of the trial court again misstated the law. N.T. at See 834. 2/26/92

In addressing Metropolitan Edison’s the trial challenge, rejected court first suggestion the permit- its instruction ted jury punitive to award damages merely based on negligent Basically, conduct. plain the court held that words of interrogatory required jury number nine find least grossly negligent conduct before awarding punitive damages. The court then jury permitted concluded that “the award damages they had concluded that the grossly negligent conduct rose to the outrageousness level of under the court’s instruction.” The Takes argument. advance a similar

Unfortunately, the plain language of verdict interrogatory number nine allowed jury punitive to award damages upon finding nothing than grossly more negligent conduct. We rely cannot on the explanation court’s oral of outrageous conduct to correct the mis-worded interrogatory, because that too mistakenly incorporated the concept negligence. The trial court never jury instructed the that negligent grossly or negligent conduct must rise to the level outrageousness to support order damages award.

Nor can regard language slips these as harm lay juror less error. A might not appreciate the subtle distinctions our law gives culpability terms such negli - reckless, gent, willful and intentional. These are terms of art See, which describe a hierarchy of mental e.g., states. 18 § Pa.C.S.A. 302 (defining culpability requirements for criminal laws). One might posit issue, therefore that this entire which lawyers judges take so seriously, would not make much lay juror, difference to a and not have affected the outcome of case, the trial. Such a stance would be too In cavalier. this Misunderstood, Journal, Cl, Instructions Are p. National Law Often stated, accurately though. The law must still be 6/6/94. could award that it understand jury was crucial for conduct, a punitive but damages for negligent compensatory negligence, than something worse required award damage The court care- conduct. outrageous negligence: even gross charg- to the fully concept negligence explained Metropoli- interrogatories which covered ing the first five negli- comparative tan and Mr. Takes’ negligence Edison’s ordinary negli- concept If gence. jury imported considerations, as the court’s into gence punitive damage do, acknowledge must invited it to then we instructions improp- have been Edison could possibility See mandate new trial. erly Such error would penalized. A.2d Pa.Super. Dempster Systems, v. Sweitzer (a (1988) an granted will erroneous new trial cannot be prejudice even of the charge, where the extent determined). precisely error which infected

We have concluded that there no appellees on the basis damages award of vacation requires that there was error which negligence, but further conclude that damages. award of We punitive compen- to retrial on the subject appellees would be unfair to which affected the award because of the error satory damage thus, as and, award a new trial punitive for damages award recognize that entitlement punitive damages only. We constructed retrial punitive damages require specially will duly and evidence of the facts where will hear to and amount instructed as to the issue entitlement unreasonably sub- punitive damages. To do otherwise would damage claim ject compensatory to retrial of the appellees fairly been won.6 already which we has conclude affirmed. judgment compensatory damages Verdict and compensatory damage punitive and Appellant also claims that the 6. disposition, we impermissably were In view of our awards excessive. however, (See, damages. argument need not address as compensatory damages stated supra). claim as to Footnote any general supported by principled argumen- only in terms and is not damages compensatory to be excessive. We do not find the tation. Verdict and judgment for punitive damages reversed and vacated.

New trial awarded for punitive damages only. OLSZEWSKI, J., files a dissenting opinion in which CIRILLO, POPOVICH, JJ., join.

OLSZEWSKI, Judge, dissenting: respectfully, but emphatically, dissent. The mil- three lion question dollar in this case is whether Metropolitan Edison waived right to a new by failing to make a timely objection to a flawed jury instruction. The record unambiguously and incontrovertibly shows that this issue was waived. The majority reaches opposite only by conclusion record, ignoring the misconstruing our Supreme Court’s well-known and oft-reaffirmed waiver rule in Dilli- plaine. Because the majority’s discussion key omits parts of the development of how the trial court defined outrageousness (which in terms of negligence we will call the “outrageousness negligence” issue), we will review it its entirety.

I. The fatal error in this case lurked within verdict interroga- nine, tory number which dealt with punitive damages. It read: you

Do find that Metropolitan grossly Edison acted negligent, reckless, willful or wanton manner in causing injuries to Mr. Takes? added).

R. verdict slip (emphasis As the majority correct- holds, ly neither negligence nor even gross negligence can an support award of punitive Thus, damages. question this law, misstated the and parties were bound to bring this error to the attention of the trial court. Specifically, some- body needed to point out the offending language; only thus could the court be apprised mistake, of the and correct it before it became entrenched. Pa.R.A.P. 42 Pa.C.S.A.1 302(b) 1. Rule reads: on the objection only specific one record contains

The not mention objection This did damages. subject punitive issue, even refer negligence” “outrageousness Rather, it concerned number nine. interrogatory verdict awith damage instructions punitive to frame its court’s refusal charge to In the court’s discussing fact situation. particular argued: jury, defense counsel I think the Therefore, position, since Judge, taking this chargfed] they it is should that makes scenario allow the just part you finish this let me way —if —and this blanket fact combination with around to wander negligent, in a willful they find acted charge: you do in- the defense is prejudicial manner reckless any thinks com- that the court suggests stance —because infer would choose could they facts that bination of the those facts and that’s negligence from and reckless wanton case. just not the discussion, defense counsel After more

N.T. at 657. 2/26/92 the appli- asked, my proposition happens “What again Id. to a fact situation?” is limited damages] cation of [punitive punitive a give general decided to The trial court then at 661. a fact specific to frame it with and refused damages charge, Id. at exception. counsel’s court noted defense situation. The objection when reiterated this Defense counsel 662-663. be or- interrogatories should how the verdict asked about 669-670, 670-671. dered. Id. is both un- exchange of this interpretation majority’s from the above ex- It concludes unconvincing.

clear charge which objection an “counsel verbalized change that in the concepts negligence elucidation of permit would conclusion at 108. This Majority op. supra damage charge.” compelling two reasons. wrong counsel’s shows that defense of this discussion Any reading outrageousness define the court’s refusal to objection was over never Defense counsel fact situation. particular in terms of exception charge to the will not general to the A Jury. Charge to Specific exception be taken to appeal. shall preserve an issue for complained language of. or the omission fact, In wording. verdict or its interrogatory, mentioned the shows that he also used language clearly counsel’s defense stan- in reckless indifference describing “negligence” word is, the same counsel used damages; for punitive dard interrogatory. the flawed verdict terminology erroneous as exchange trial court itself concluded Secondly, the in terms of outrageousness refusal- to define concerned its opinion, Trial court 6; fact situation. particular 2/26/93 determina- only specific at 142. This is the majority opinion preservation. about issue that the trial court made tion the trial court offers majority with the that when agree to make a determination about of the record issue recollection Hence, to the trial defer. we defer we should preservation, because, have the majority emphasizes, court here exchange to what this trial court’s own conclusion as contrary to its own statement majority, Id. The about. Thus, interroga- not. the error verdict policy, waiver does charge confer- during number nine went unnoticed tory the. ence. general principles court’s instruction on the

During the exchanges place: took damages, following punitive Court, punitive ... The amount of charging jury]: [The passion not be the result of awarded must damages on the of the Metropolitan part Edison prejudice against and the punitive damages jury. purpose The sole award, if you such an were you may for which make purpose punitive an amount of make such an award and set outrageous Edison’s Metropolitan is to damages, punish such, conduct, and to deter if were to find it as you like from commission of Edison and others Metropolitan acts. you Do very question: number nine asks that

Question grossly negligent, Edison acted find that reckless, injuries to Mr. causing willful or wanton manner do, find? Takes, you damages you if what do Gentlemen, to the suggested are corrections any there or corrections to the punitive damages, additions instruction? damages BAR:

AT SIDE your to that Honor? page, counsel]: Just [Defense Yes, just page. THE to that COURT: Honor, re- you I like to Your would [Plaintiffs’ counsel]: on the standard instruction quest charge jury the court punitive damages, 1400. I will that.

THE COURT: do Honor, I objection, your is don’t onlyMy [Defense counsel]: exactly you’ve have extent that you think that defined to show got go reckless. he A is when person’s outrageous

THE conduct COURT: motive, he a reckless a bad or when acts with acts with indifference, charge and I’m about to that. Fine, Judge.

[Defense counsel]:

IN OPEN COURT: Court, ... A charge jury]: person’s continuing

[The included that would outrageous, among conduct wanton, acts reckless, negligent, person willful or when indifference motive or he acts with reckless with a bad when which That is the definition with to the interests others. the issue. approach added). raised no (emphasis Id. Counsel still at 832-834 interroga- objection negligent” to the use of verdict “grossly Moreover, error the court tory number nine. exacerbated ordinary negli- in terms of outrageousness when it defined objections no were raised. gence. Again, any court finishing charge, again asked After or to the Defense charge. additions corrections suggested Honor, I “Your restate the Defendant’s responded, counsel objection on intentional charging to the Court’s reckless and deliberate, then damages.” jury The retired punitive terms to the use of the any specific objection without court’s punitive in its “grossly negligent” charge “negligent” damages. The later returned with its verdict for the Takes. in open

verdict was read court. nine: Do find that Question you number clerk]:' [Court reckless, negligent, grossly in a Edison acted injuries manner in to Mr. Takes? causing willful or wanton Yes, we do. jury foreperson]: [The amount of Question ten: State the clerk]: [Court for Plaintiff Defendant? damages you against award million dollars. [Jury foreperson]: Three added). objections no Again, at 848 (emphasis N.T. 2/26/92 raised, point, At this were and the dismissed. point set. It is also at this irrevocably error became attached, pointed noticed or out nobody because had waiver negligence” mistake. “outrageousness as to whether Metro- any lingering If there could be doubt error, at Metropolitan Edison missed this a look politan Metropoli- motions must erase that doubt. post-trial Edison’s mention of post-trial motions for relief made no tan Edison’s “negligent” “grossly in terms and using the court’s error the Indeed, damages. in the motions negligent” defining punitive negligence, in terms of defining outrageousness in persisted The charge counsel did at the conference. just as Edison raised was the Metropolitan issue punitive damage punitive damages for whether preserved appeal: issue it had single limited to a factual scenario. Metro- should have been post-trial argued first motion for relief politan Edison’s point refused Defendant’s erroneously the Trial Court [t]hat reads as follows: charge for No. which by if that the Plaintiff was advised only you 26. It is find de-energized that the Metropolitan capacitor Edison Metropolitan Defendant Edison knew that was when negligence you can find willful and wanton on Edison. part Metropolitan the of Defendant ¶ Relief, Edison’s Motion for Post-Trial Metropolitan R. added).2 for post-trial The two amended motions (emphasis post-trial the issue in motions is 2. We note that the failure include 227.1(b)(2). grounds waiver under While the trial also Pa.RX.P. claims, still no mention of the added some but made relief Id. The majority’s in court’s instruction. error the alleged in- as issue was “outrageousness negligence” claim that at wrong. Majority op. motions is post-trial simply cluded 124. in post- at trial or having brought up never been

Despite motions, issue sud- “outrageousness negligence” trial Metropolitan lead Edison’s denly appeared argument as the also precisely It was at support post-trial brief motions. post-trial mo- filing briefing point —between from Edison hired additional counsel Metropolitan tions—that McClay aug- & Pittsburgh firm of Reed Smith Shaw firm from the Bethlehem ment counsel team 54, 69. & Doak. R. LaBrum motions, the trial court first opinion post-trial

In its on question specif- of whether Edison addressed negligent grossly of the ically objected the use terms wrote punitive damages. in its court negligent charge record that Met Ed did review of the discloses “[a] objections damages certain on the issue.” preserve added). at 3 The court opinion (emphasis Trial court 2/26/93 charge of the conference and then reviewed the record itself, out The court concluded: charge as laid above. objection it is that Met ex- primary Thus clear Ed’s intended revolved preserved trial and to be pressed would punitive damages around Met Ed’s contention that agent that Met Ed’s finding not lie absent a plaintiff capacitor told the that the was deener- knowingly rejected he that it not. The court gized when knew 661-662). (N.T. February pp. that contention. Met its Having preserved objections determined that Ed damages, the as well as to the charge punitive 227.1(b)(2) may noncompliance rule and choose to court overlook with motions, though post-trial the an issue even it was absent from address is, Dilliplaine: preserved pursuant “it must still have been that issue trial, during timely pre-trial proceedings or the thus must be raised Explanatory affording opportunity to correct error.” court an 227.1(b)(1). to rule comment damages, we now jury interrogatory concerning punitive address the substantive issues raised Met Ed. 6; at majority op. Trial court at 109-110. opinion 2/26/93 crucial, opinion two of the trial court are paragraphs These they constitute the court’s entire discussion of issue because trial court recalled that the discussion and preservation. The Metropolitan at the conference concerned objection charge framing for a dam- request fact-specific Edison’s objection pointed That record the trial court ages. only to, it discussed. The preservation and the instance of any Metropol- in the record where place trial court did not cite objected to the outra- specifically defining itan Edison court’s The trial court did not geousness negligence.3 terms of raised and even state that it recalled the issue was preserved off the record. The trial court offered no reason ignore compelling argu- for its decision to the Takes’ waiver Rather, the trial court to review its simply proceeded ments. grossly negligent defining use of the terms negligent The court concluded that the punitive damages. charge as a whole were consistent with the interrogatories verdict law, at 14. proper. opinion and were therefore Trial court emphasize again agree majority’s that we with the courts should defer to a trial court’s appellate statement That is specific concerning preservation. recollections issue objection conference why during charge one reason as issue— preserve “outrageousness negligence” does not specifically has told us that because the court objection majority, went to a different issue. Unlike the actually specific do defer to the trial court’s recollection of the trial proceedings. problem given here is that the trial court has not us

anything “outrageousness negligence” to defer to on the discussing preservation issue. It addressed it without simply all, even briefs whether the though post-trial disputed course, Metropolitan 3. Of has Edison. We have taken care to neither full, proper chronology, lay out this issue in and in to show that the very first time the issue was mentioned was in Edison’s supporting post-trial brief motions. reason for gave The trial court no preserved. had been issue cita- preserved that the issue was conclusion implicit its —no discussion, that it record, an assurance no not even tion to raised, its despite conspicuous that issue was recalled from record. absence

Hence, us to conclude the issue compels the record utter just not from the palpable, The waiver is missed. trial, conspicu- but because objection at also absence forth motions. Waiver shines post-trial ous absence from circumstances, the record beacon. Under such from the like a to find We must us some reason not waiver. give trial court despite the absence court’s assurance that might accept trial objection, being preserved. issue as of record it recalled the here, not this. cannot court has done even But trial to. gives nothing when the court us to defer defer trial however, the trial court’s majority, interpret The chooses to It then chooses to preservation. as a of issue finding silence issue as finding, preserved, to that treats the implicit defer new interrogatory verdict requires and holds the flawed majority In does violence to the holding, trial. so not record, law it does to our of waiver greater even violence Co., Valley v. Trust Dilliplaine Lehigh announced (1974). A.2d 114 II. timely, specific trial to make Dilliplaine requires counsel trial, objections during alleged to correct judge

ensure that the trial has a chance alleged at errors. to correct errors opportunity trial This use of orderly judicial trial advances the efficient our resources. sjs ifc

if: sH sfc in the Appellate court consideration of issues raised becoming in the a dress merely trial courts results professional necessity process rehearsal. This removes litigate fully the case prepared for trial counsel to be appellate review. adequate trial and to create a record that an court ill-prepared hope appellate advocate’s him come to his aid after the fact and afford relief will object an error. The despite alleged his failure to lawyer pe- his client—are diligent prepared —and an retried because an appellate nalized when entire case is opposing court reverses on the basis of an error counsel trial court’s attention. Failure to failed to call to the objection at trial denies the trial court interpose timely and an argument opportuni- the chance to hear on the issue ty to correct its error. 257,

Id. at 322 A.2d at 116. high This is the heart of our waiver doctrine. Our court has times, recently most emphasized importance countless (1994). Lumber, Inc., 567, 649 A.2d 932 McMillen v. 8k may It a technical rule which be overlooked procedural is not 227.1(b)(2) court, Rather, violation.4 it by the trial like a rule law, policy. statement of embodying strong is substantive , trial court are bound to it apply Both this court and the McMillen, supra. to the result. See regard without substantive, emphasize presents an issue of not 4. We that this case Metropolitan include procedural, waiver. If Edison had failed to motions, "outrageousness negligence” post-trial then as issue in its defect, overlook that and we would be the trial court could choose to to do likewise. American Association Meat Processors v. bound of 59, 67, (1991) Casualty Reciprocal Exchange, (the Pa. 588 A.2d 495 527 Dilliplaine: purpose of rule 227.1 is to effect the waiver doctrine of they bring of the trial court so can be errors to the attention corrected, raising appeal; than them for the first time on when rather error, opportunity given sufficient to correct its own the trial court is Dilliplaine application post-trial is satisfied and further waiver for Kurtas, superfluous); procedural error would be see also Kurtas v. 521 (Pa.R.C.P. (1989) permits A.2d courts to overlook Pa. thus, fairness; justice to advance when defects order procedural ignore any non-compliance a trial court chooses to 227.1, technical with rule likewise). appellate do courts should Here, every bring opportunity counsel had the error to the court’s trial, during failed. When the was attention and correct it dismissed, but point the error became set. It was at this that waiver post-trial attached —not at motions. The waiver here does not stem rule, procedural empow- which the trial from a violation of a court Rather, ered to overlook under rule 126. it stems from the violation Dilliplaine, the trial and this the substantive law of which both court Court must follow. The however. apply Dilliplaine, court did not The trial on post- Takes brief joined question preservation —the Edison had argued strenuously trial motions As issue. negligence” “outrageousness preserved were correct. length, the Takeses great have set forth it, before arguments waiver ignored the trial court But doing it reason for no anyway; gave the issue and addressed we are here is whether question impression so. first is, That can an trial court’s decision.5 bound absolutely from the record any court make determinations appellate every implic- accept or must we concerning preservation, issue pat- preservation on issue trial court determination —even waiver the law of determinations which violate ently erroneous Dilliplaine? as set forth affirmative answer. majority’s agree cannot with

We greatest trial court the give do that we should agree here, actually transpired since it knows best what deference But trial, events. how well the record reflects these making of purpose cannot be blind. The whole deference Every it. courts can review appellate at trial is so record vitally important how attorney in this knows Commonwealth to objections on the record order specific to state timely, trial court be able preserve appeal. them for Should nullify the of a record and making entire purpose obviate the We do addressing an issue? just by mandates of Dilliplaine but so is strong, behind deference is policy think so. The cases will Only in the rarest of Dilliplaine. the rationale clear, ignore the trial court’s decision waiver be so ignoring and the unsupportable, consequences so waiver be on the merits chosen address issues 5. This Court has on occasion so, despite do our conviction that court has elected to because the trial 425, Nolan, Pa.Super. v. 418 were waived at trial. James the issues 428, Brooks, 709, (1992); 2 394 A.2d n. 1 and n. Smith v. denied, 327, 340, (1990), Pa.Super. n. 2 alloc. 575 A.2d cases, (1991). did not In those our 592 A.2d 42 deference policy Dilliplaine we affirmed the trial implicate the behind because them rulings. the issues waived or addressed Whether held courts’ Here, merits, consequence required. were on the no new trials Hence, presented for the first time we are is a new trial. deference policy on issue ad hoc of deference with a conflict between our true Dilliplaine. preservation and the mandates waiver be weighty so that an appellate justified court would be rejecting the trial court’s This, decision on preservation. however, is precisely such a case.

We have outlined the waiver here at great length: despite the many opportunities, nobody problem mentioned the with verdict interrogatory number trial, nine—not during not after trial, not filed, until after post-trial motions were when Metro- politan Edison had hired new counsel. We have also dis- cussed the trial court’s failure to address the question of preservation: record, the court did not cite the preser- discuss vation, or even state that it raised, recalled that the issue was despite its obvious absence from the record. What remains is to consider consequences of the majority’s blind deference to the trial unsupported court’s and unsupportable decision.

III. The consequence of majority’s holding is a new trial. Dilliplaine’s purpose trials, is to avoid the cost of new both to judicial system and to parties. As the large record attests, major this was a and no expensive doubt trial. Post- trial and appellate proceedings have already taken than more far, three years so adding that much expense, more delay, and frustration. Now the majority orders a new trial. The costs judicial to the system considerable; are the costs to Stephen and Catherine greater. Takes are far

In an burden, attempt mitigate this the majority has limited the new trial to the issue of damages. Such a sense, trial makes no and is contrary to Pennsylvania law. Our research has revealed not a single case in this Common- wealth where a trial new punitive ordered on damages alone. A new trial may be limited to but damages, only where the matter of is damages not intertwined with liability. Lin- Kromer, inger v. 259, Pa.Super. 273, 238 89, 358 A.2d 96 (1976). To award punitive damages, jury a must determine the culpable quality of a is, defendant’s conduct—that whether it acted outrageously. This requires a full trial on the facts. A jury could not be told that Metropolitan Edison is 100%

135 unbiased factual injuries and still make Mr. Takes’ liable for concedes, liability is inexora- majority As the determinations. a must determine damages: jury punitive with bly intertwined if it can decide is before conduct culpable what meaningful, a new trial would To be outrageous. is conduct trial, to the all attendant costs full with have to a Dilliplaine is still subverted. system. and court parties a able conduct theoretically be to Still, might court trial verdict, and remand, compensatory any full throw out trial Even under damage award. punitive keep possible unlike- highly seems procedure, costly this and burdensome time. second punitive damages award ly jury that a would to trial, Metropolitan try Edison At saw jury the first utility’s clearly for the blame Mr. Takes rationalize and justify, trial, Metropolitan Edison At a second conduct. outrageous for this very apologize face: it would on a different put could compensatory a large itself to as tragic open mistake and jury’s give, to since the second jury as the cared verdict A of contri- nullity. strategy a verdict would be compensatory damage award. punitive avoid a effectively tion could punitive of purpose It in mind that the important to bear outrageous conduct. When a is to deter future damages conduct blatantly its reckless justify sees a defendant to try will continue court, conclude that this defendant rightly it may v. punished. Boggavarapu outrageous ways unless Cf. (a (1988) 516, Ponist, 166-168, 518 162, 542 A.2d 518 Pa. presented a case is deter way may properly consider testimony of shows A review the mining damages). paint a allowed Mr. Takes knowingly Edison is a live, paradigm This conduct capacitor. five kilovolt indifference; puni public policy strongly calls reckless majority’s such conduct.6 The damage tive award to deter 383, (1984) Merriam, (adopting 485 A.2d 6. See Feld v. Pa. Torts, 908(2)); (Second) § SHV Coal v. Continental Restatement 702, Co., (1991) (when an "actor A.2d Grain high degree physical risk of harm create a ... of facts which knows act, act, another, deliberately proceeds to fail risk,” of, to that this demonstrates disregard or indifference conscious justify a particularly culpability, which can high degree 136 approach

novel to a “limited” new trial thus both contravenes Pennsylvania law and effectively scuttles the policy behind It damages. remittitur, acts as a de facto particularly unconscionable one.

IY. Thus we have a case which fully implicates policy behind Dilliplaine, and to the brings fore the inherent tension be tween waiver doctrine and majority’s policy of blind defer ence to the trial preservation court’s determinations. As the notes, majority this case is not the first time that we have been presented with a waived, situation where an issue was but we have deferred to the trial court decision to address it Nolan, anyway. See James v. 425, 428, 418 Pa.Super. 614 709, (1992); Brooks, A.2d 711 n. 1 2 and n. Smith v. 327, Pa.Super. 340, 926, denied, 575 A.2d (1990), 932 n. 2 alloc. 621, (1991).7 cases, however, A.2d In those our deference came at no cost to the parties because affirmed .we court, the trial and no new trials were needed. See fn. supra.

Neither the Nolan nor Brooks courts announced au- any thority for their decisions to address issues they were convinced had been waived at trial. While this policy of deference is rooted sound principles of appellate practice, it is still an ad hoc policy. Dilliplaine, hand, on the other controlling law.

Moreover, question before us is not how we would balance our ad hoc deference policy against policy; waiver question is how Supreme our Court would balance' these two award)

damage a). (Second) (citing Restatement § of Torts comment facts, Despite strong agree these we must majority’s with the conclu- sion that this regarded error cannot be Majority op. as harmless. plainly 148-149. To do so would jury’s invade the fact-finding prov- ince. Brooks, 7. In both Nolan and our deference to the preserva- trial court's issue; major tion decision was not a we used footnotes to note our disagreement preservation with the trial court’s determination and to Here, preservation defer nonetheless. appeal. is the central issue on recently reminded As our court has policies. high competing will not us, Dilliplaine, rationale of it believes McMil reasons. compelling departures countenance without 932, 934 Lumber, Inc., 567, 571, A.2d Pa. 649 538 len v. 84 (1994) application overbroad Court’s (reversing Superior rule). Supreme our Given to waiver public exception interest waiver that it takes forceful statements repeated Court’s and majority’s the it follow not believe that would seriously, we do a trial side-stepped to be Dilliplaine course and allow or mistake. oversight court’s it indeed, majority’s approach: import that the

For that an issue determination holds that a trial court essentially fact The mere be mistaken. can never preserved has been means preserved as court treats an issue that a trial to find powerless court is an appellate has and preserved, been deference great a trial court may While we accord otherwise. palpable or areas, gross our review to many confining a no other area where discretion, can think of abuses As utterly immune from review. finding court’s would trial always appreciate illustrates, may courts not lower McMillen not waiver, they may perhaps like of a doctrine sweep possible. are it. Mistakes implement to understand how fully them, and correct acknowledge we should they happen, When policy an ad hoc them with and exacerbate entrench deference. unconditional of unconditional defer- examples danger illustrate the

Two Suppose determinations. court preservation ence trial in its held the trial court reversed: present situation were waived, counsel though even issue had been opinion that an can be objections on record. There timely, specific made issue properly preserved a that we would treat question little contrary opinion trial court’s despite preserved, Inc., Coal, 386 Haven Sky Graham v. See preservation. banc) (1989) (en 891, 1 n. 598, 612, 563 A.2d 898 Pa.Super. do otherwise dissenting). To concurring and (Brosky, J. waiver, unfairly would law of contrary to the would be mistake. court’s litigant punish a Likewise, unwarranted deference in the present posture law, also our gives contravenes waiver windfall to the unprepared unfairly burdens party par- the non-negligent Nolan, ty, all in In Dilliplaine. contravention of James v. our supra, deference the trial court’s determi- preservation clearly nation was unwarranted. appellant The in Nolan verdict, argued jury rendered an inconsistent but appellant object jury failed verdict before the was dismissed. trial court post-trial addressed the motion for a new trial because of inconsistency, verdict even though might any counsel have problem by solved out the pointing alleged inconsistency to the court while the was still impaneled. We felt that counsel’s to object failure before the waiver, dismissed constituted but we deferred to the Nolan, trial court and addressed the issue on its merits. supra Pa.Super. at A.2d n. and n. 2. clear, however, is It absolutely delay that such consti does 467, tute waiver. Police Philadelphia Dept. v. Pa. Gray, 534 (1993); 633 A.2d 1090 Curran v. Bay Greate and Hotel Casino, (1994) 368, (en Pa.Super. banc); 643 A.2d 687 Kriner, 297, v. (1994); Picca 435 Pa.Super. 645 A.2d 868 Chroust, (1984). Krock v. 330 Pa.Super. 478 A.2d 1376 waived, We were correct that the had issue been the trial and court was wrong should have deferred. But because —we merits, we affirmed trial on court our mistake in deferring preservation trial court’s decision became If in moot. our review Nolan would have resulted in revers trial, trial a

ing ordering court new it would have been in Dilliplaine. direct contravention of That is precisely what happening is in this case.

The where high context our court has indicated we relax might application our waiver is criminal cases. Since criminal a defendants have constitutional right to effec- counsel, tive assistance of trial counsel’s failure to preserve meritorious issues for does appeal not act as a permanent waiver; may defendants have a right to revisit waived issues with new on appeal, through counsel the Post Conviction cases, Act. may Relief Thus criminal ignore choose to economy, judicial purposes waived issues for possibly v. litigation. See Commonwealth pre-empt future order (1992). Sees, 450, 451, n. 1 Civil 605 A.2d Pa. however, no to effective assistance right have litigants, counsel trials so that do not new civil conduct counsel. may have to correct errors which job, can do a better but give that we not Dilliplaine requires the verdict. infected pre- unless counsel has apple bite at the counsel second that error. served

V. sum, jury rendered a verdict In a case where the we have The and instructions. record interrogatory a flawed based on emphasize cannot noticed the mistake. We nobody shows that come to mistake did not how clear the waiver is: the enough Yet, filed. post-trial until after motions were light why. not know The trial do court addressed issue. We so issue which say why addressing it was court did not ignoring It all for gave had waived. no reason at plainly been majority argument waiver before it. compelling binding, decision as accepts this incorrect and unfathomable merits, and is to order compelled addresses the issue on the new trial. costly impractical waiver, strong our policy given

We feel certain this result. Waiver Court would not countenance Supreme just majori discouraging gamesmanship. more than about Cf. is to motivate central waiver ty op. purpose at 143. The level, they not fix at the trial so do counsel to catch and errors Dilli appeal issues for and necessitate new trials. become course, 257-259, at 322 A.2d 116. Of plaine, supra at fix errors; up can it is trial court to counsel catch require preserve is we counsel to issues why them. That make mistakes which Just as trial courts can the record. trials, court make a mistake might new so require To preservation. type poten immunize this regarding issue policy. waiver completely error from review frustrates tial Hence, we think an appellate that court must exercise some limited review of a trial court’s determination on whether an preserved. issue has been properly This should be the nar- rowest, most deferential review possible. accept We should interpretation record, trial court’s since it knows best what at trial. transpired might even allow for the possibility objection remote an might appear that on the record; if the trial court assures us that an issue raised record, off may accept its determination.

But we must acknowledge judges are not infallible. judge mistakenly When a an treats issue as having been preserved, we cannot bound erroneous determina- tion. To employ policy such of blind deference “would substantially McMillen, eviscerate the principle.” waiver su- pra at just 649 A.2d 934. That what majority here, accordingly does we must dissent. POPOVICH, JJ., join.

CIRILLO and

655 A.2d 158 In the Interest of WILLIAM M.

Appeal Pennsylvania. COMMONWEALTH Pennsylvania.

Superior Court of Argued 5, 1994. Oct. Filed Feb. 1995.

Case Details

Case Name: Takes v. Metropolitan Edison Co.

Court Name: Superior Court of Pennsylvania

Date Published: Feb 22, 1995

Citation: 655 A.2d 138

Court Abbreviation: Pa. Super. Ct.