Fillmore v. Hill

Decision Date22 June 1995
Citation445 Pa.Super. 324,665 A.2d 514
CourtPennsylvania Superior Court
PartiesJohn W. FILLMORE, Appellant, v. Howard HILL, Appellee.

Marvin J. Rudnitsky, Selinsgrove, for appellant.

Joey A. Storaska, Sunbury, for appellee.

Before ROWLEY, President Judge and BECK and KELLY, JJ.

KELLY, Judge.

In this opinion, we are called on to determine whether a trial court may properly deem waived an issue relating to a jury's problematic, but not inconsistent, verdict because a party failed to object to the verdict prior to the jury's dismissal by the trial court judge. We hold that under such circumstances, a party's failure to object prior to the jury's dismissal does not result in the issue's waiver. Accordingly, for the following reasons, we reverse the order of the trial court and remand for proceedings not inconsistent with this opinion.

This appeal involves a challenge to the trial court's denial of appellant's, John W. Fillmore's ("Fillmore"), motion for a new trial based on the fact that Fillmore waived the issue contained therein by failing to object to the jury verdict prior to the jury's dismissal. The relevant facts and procedural history are as follows. On September 21, 1991, Fillmore and appellee, Howard Hill ("Hill"), were involved in an automobile accident. After coming to an abrupt stop in order to avoid hitting a car in front of him, Fillmore was struck from behind by Hill, who was travelling behind him. (N.T. 10/10/94 at 2). Fillmore subsequently filed a complaint in negligence against Hill, alleging Hill's negligence to be the cause of his injuries.

During a three day trial, Fillmore's expert witness testified that Fillmore suffered various personal injuries, including a disc herniation in the lumbar area. The expert also testified that to a degree of medical certainty, the car accident caused these injuries. (N.T. at 62). Fillmore claimed that, as a result of the accident, he has become permanently disabled, incurred a loss of income and will endure significant pain and suffering in the future. Additionally, Hill's expert testified that even though Fillmore had previous lower back complaints, Fillmore's lower back problems were reasonably related to the accident. (N.T. at 77).

At the close of the case, the jury returned the following verdict. The first interrogatory, which asked whether Howard Hill was negligent, was answered "Yes". The second interrogatory, which read: "Was Howard Hill's negligence a substantial factor in bringing about John Fillmore's harm?" was answered "Yes". However, the jury also found that Fillmore was contributorily negligent, and that his contributory negligence was a substantial factor in bringing about his harm. The jury then attributed fifty percent of the causal negligence to each party. Lastly, the jury found that the total compensable damages sustained by Fillmore from the accident was zero. (Verdict Slip, 5/19/94.)

When the foreperson read the verdict, the trial judge noticed that one of the jurors seemed uncomfortable and he suggested that the jury be polled. Fillmore's counsel made a formal request and the jury was polled. The jury confirmed the verdict and was then dismissed. Fillmore's counsel did not object to the jury's verdict. (N.T. 10/10/94 at 4).

Fillmore filed a motion for post-trial relief on May 26, 1994 in which he sought a new trial on the basis that the jury's damages award of zero was against the weight of the evidence. In an opinion filed October 10, 1994, the trial court denied relief, concluding that Fillmore waived his right to a new trial by not objecting to the verdict before the jury was dismissed. This timely appeal followed.

Fillmore raises the following issues for our review:

A. THE APPELLANT DID NOT WAIVE HIS RIGHT TO OBJECT TO THE JURY'S VERDICT AWARDING ZERO DOLLARS IN DAMAGES.

B. A NEW TRIAL SHOULD BE GRANTED BECAUSE THE JURY'S AWARD OF ZERO DOLLARS IN DAMAGES IS AGAINST THE WEIGHT OF THE EVIDENCE AND AGAINST THE LAW OF COMPARATIVE NEGLIGENCE.

Appellant's Brief at 8 and 17.

Fillmore alleges that he did not waive his right to object to the jury's verdict concerning its award of zero dollars in damages. Specifically, he argues that the cases relied upon by the trial court to support waiver are not controlling because they are significantly distinguishable from the instant case. Fillmore therefore contends that he properly raised the verdict issue through a post-trial motion and concludes that the trial court erred in declaring this issue waived. We agree with Fillmore that the waiver rule is not applicable to the instant case, and reverse for proceedings consistent with this opinion.

Initially, we note that in order to preserve an issue for appellate review, a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court. Boyle v. Steiman, 429 Pa.Super. 1, 10, 631 A.2d 1025, 1030 (1993), alloc. denied, 538 Pa. 663, 649 A.2d 666 (1994). Failure to timely object to a basic and fundamental error, such as an erroneous jury instruction, will result in waiver of that issue. Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 258, 322 A.2d 114, 116 (1974). On appeal, the Superior Court will not consider a claim which was not called to the trial court's attention at a time when any error committed could have been corrected. Noecker v. Johns-Manville Corp., 355 Pa.Super. 463, 471, 513 A.2d 1014, 1018 (1986). The principle rationale underlying the waiver rule is that when an error is pointed out to the trial court, the court then has an opportunity to correct the error. Dilliplaine v. Lehigh Valley Trust Company, supra, 457 Pa. at 258, 322 A.2d at 116; see also Takes v. Metropolitan Edison Co., 440 Pa.Super. 101, 106, 655 A.2d 138, 141 (1995) (en banc ) (Dilliplaine waiver rule inspired in part by effort to motivate trial counsel to be diligent and assist court in preventing error at trial stage where it could be corrected). By specifically objecting to any obvious error, the trial court can quickly and easily correct the problem and prevent the need for a new trial. Id. 457 Pa. at 258, 322 A.2d at 116. Additionally, the appellate court should not be required to waste judicial resources correcting a problem that the trial court could have easily corrected if it had been given the opportunity to avoid the necessity of granting a new trial. Id. at 259, 322 A.2d at 117.

Recently, Pennsylvania courts have extended this waiver rule to include cases involving inconsistent verdicts. In City of Philadelphia v. Gray, 534 Pa. 467, 633 A.2d 1090 (1993), the appellant failed to object during trial to inconsistent answers to interrogatories in the verdict. The case involved two defendants, SEPTA and the City of Philadelphia. The jury returned the following verdict. The first interrogatory asked: "Do you find that the defendant, SEPTA driver, was negligent in the operation of his vehicle?" and the jury answered: "Yes." Id. at 471, 633 A.2d at 1094. The question also asked if the "SEPTA driver's negligence was a substantial factor in the plaintiff's accident and her injuries resulting from that accident?" The jury answered "No" to this question. The second question asked about the City of Philadelphia. The jury answered "Yes" the City was negligent and that its negligence was a substantial factor in bringing about the plaintiff's injuries.

However, when asked to divide the causal negligence between the two defendants, the jury assigned 25% to SEPTA's negligence and 75% to the City's negligence. Id. at 471, 633 A.2d at 1094. The jury then determined the damages sustained by plaintiff to be $20,000 for injuries and $18,000 for pain and suffering. Neither party objected to the verdict or requested that the jury be polled. Id. On appeal, our Supreme Court, applying the Dilliplaine waiver rule and its rationale, deemed any claim arising from this inconsistency to have been waived. City of Philadelphia v. Gray, supra, 534 Pa. at 477-78, 633 A.2d at 1095.

Shortly thereafter, this Court, in a plurality opinion addressing the issue of waiver, decided Curran v. Greate Bay Hotel and Casino, 434 Pa.Super. 368, 643 A.2d 687 (1994) (en banc ), alloc. denied, 539 Pa. 678, 652 A.2d 1323 (1994). The court required an appellant to specifically object during trial to an inconsistent verdict or suffer the consequence of waiver. Id., 434 Pa.Super. at 376, 643 A.2d at 691. That case also involved a similar inconsistency between two defendants: Sands Hotel and Eastern Engineering. Interrogatories one and two asked about the first defendant. Regarding the first and second interrogatories, the jury concluded: "Sands was negligent, but that the negligence of Sands was not a substantial factor in causing harm to plaintiff." To the third and fourth interrogatories, the jury concluded that Eastern was negligent and its negligence was a substantial factor in causing harm to the plaintiff. However, the jury attributed thirty percent of the casual negligence to Sands and seventy percent to Eastern. See Curran v. Greate Bay Hotel and Casino, supra at 372, 643 A.2d at 688. Recognizing that the waiver rule would not apply in the absence of an inconsistent verdict, the plurality stated:

"It is well established law in Pennsylvania that there is a presumption of consistency with respect to a jury's findings which can only be defeated when there is no reasonable theory to support the jury's verdict." Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 440, 539 A.2d 871, 875 (1988).

Id. at 372, 643 A.2d at 688. However, the Court determined that the jury's responses to the interrogatories could not be reconciled and thus concluded that because appellant failed to timely lodge an objection, the waiver rule applied. Id. at 374, 643 A.2d at 689.

Several months later, in Picca v. Kriner, 435 Pa.Super. 297, 645 A.2d 868 (1994), alloc. denied, 539 Pa. 653, 651 A.2d 540 (1994), ...

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