Tagnani v. Lew

• Decision Date: 13 March 1981
• Citation: 426 A.2d 595,493 Pa. 371
• Parties: Bruno TAGNANI, Administrator of the Estate of Elizabeth Tagnani, Appellee, v. Caryl Lynne LEW and James M. Reinert, Defendants-Appellants.
• Court: Pennsylvania Supreme Court

Page 595

426 A.2d 595

493 Pa. 371

Bruno TAGNANI, Administrator of the Estate of Elizabeth Tagnani, Appellee, v. Caryl Lynne LEW and James M. Reinert, Defendants-Appellants.

Supreme Court of Pennsylvania.

Argued Jan. 27, 1981.

Decided March 13, 1981.

[493 Pa. 372] Joseph J. Musto, Pittston, for Caryl Lynne Lew.

Jonathan C. Teller, Wilkes-Barre, for James M. Reinert.

Anthony C. Falvello, Conrad A. Falvello, Paula C. F. Garrety, Harrisburg, for appellee.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.

OPINION

NIX, Justice.

The basic issue presented in this appeal is whether the court en banc may give relief on post-verdict motions when such relief had not been requested during trial. We hold that our decision in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974) precludes such a practice.

The instant appeal originated from a trespass action for damages arising out of the death of Elizabeth Tagnani on March 19, 1971 in Luzerne County. The trial resulted in a verdict in favor of the defendant-appellants. The Estate of Ms. Tagnani filed post-verdict motions and the court en banc granted a new trial. The Superior Court affirmed, per curiam, and we granted review.

The basis for the grant of a new trial by the court en banc was the attempt by the defense, at trial, to interject the possibility of the remarriage of the husband of the decedent. An objection to the question was promptly sustained and the question was not answered. No further relief was sought by appellee during trial. There was no request for cautionary instructions nor was there a request for the withdrawal of a juror. On post-verdict motions, after the jury had obviously decided the liability question in favor of the defendant-appellants, the court en banc concluded that the improper, unanswered question was so prejudicial that a new trial was warranted. Appellants do not challenge the trial court's ruling as to the impropriety of the question involved. ¹ The issue involves the power of a court to grant a new trial for alleged harm neither designated as such nor for which remedy was sought during trial.

The court en banc relied upon our decision in Hill v. Gerheim, 419 Pa. 349, 214 A.2d 240 (1965). In Hill the fact that the remedy requested during trial was granted and no further complaint was then made was not controlling. We there suggested a power in the court to grant a new trial where justice and fairness requires, even though the complaint had not been properly preserved by the offended party. ² The broad discretion of a trial court in awarding new trials suggested in Hill must now be measured in light of our adoption of a strict rule of issue preservation announced in our later decision in Dilliplaine. Under the Hill approach, the trial court was implicitly given the authority under the guise of "justice and fairness" to disturb verdicts when they did not comport with that court's visceral response to the evidence. The court en banc 's application of the "justice and fairness" standard to the facts of this case serves to accentuate that fact. ³ In Dilliplaine we noted:

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.

Id., 457 Pa. at 257, 322 A.2d at 116.

Whether the test is framed in terms of the dictates of "justice and fairness" or "basic and fundamental error" the resulting criteria is the same and the objections cited in Dilliplaine are equally as valid.

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.

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. 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. (Footnote omitted.) Id. 457 Pa. at 257-58, 322 A.2d at 116.

Moreover, no legitimate basis for distinction may be found between the situation where the claim is not timely raised and where the remedy sought was not timely pursued. The concerns expressed in Dilliplaine are equally applicable in both instances. The claimed taint in this case is that the mere sustaining of the objection to the improper question was inadequate to protect appellee's interests. If this asserted inadequacy had been called to the trial court's attention at the time of the occurrence, that court would have had the option of giving a cautionary instruction which could have removed any prejudice which may have resulted from the asking of the improper question. Appellee's failure to pursue further relief after the court sustained the objection justified the court in concluding that no further action with reference to that complaint was necessary. As a consequence, the unnecessary waste of judicial resources resulting from the failure to afford the trial court the opportunity to correct error during the trial and thereby avoid the necessity of a retrial is graphically demonstrated in this case. Even if the error was of such a magnitude that it could not have been cured, the trial could have been immediately aborted, thereby preventing the additional waste of completing the infirm proceeding. "Perhaps at an earlier stage of our jurisprudential development this practice could be justified. Today, however, there is no excuse for ... less than alert professional representation at trial." Dilliplaine v. Lehigh Valley Trust Co., supra 457 Pa. at 258, 322 A.2d at 116.

With the volume and complexities of the matters coming to our judicial system for resolution, it has become imperative that the former paternalistic approach be discarded and...