One of the knottiest problems for appellate counsel in assessing possible waiver issues is how much preservation is enough when it comes to the jury charge. Rule 227(b) of the Pennsylvania Rules of Civil Procedure provides: “Unless specially allowed by the court, all exceptions to the charge to the jury shall be taken before the jury retires. On request of any party all such exceptions and arguments thereon shall be made out of hearing of the jury.”

While Rule 227(b) establishes the last possible momemt for taking exception—“before the jury retires”—there are numerous earlier opportunities for raising objections.

Where jury instructions are concerned, these earlier opportunities for objection include the filing of points for charge, written objection to opposing points for charge, objections and submissions at the charging conference, objections to the court's proposed charge prior to its being given, and post charge (but pre-deliberation) objections to the charge as given. Thus Pa. R. Civ. P. 227.1(b) provides: … Post-trial relief may not be granted unless the grounds therefor, if then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and are specified in the motion … .

Finally, Pa. R.A.P. 302(b) provides: A general exception to the charge to the jury will not preserve an issue for appeal. Specific exception shall be taken to the language or omission complained of.

How does the availability of these earlier opportunities to object affect waiver? Currently, precedent appears to be all over the place. In Takes v. Metropolitan Edison, 695 A.2d 397, 399 (Pa. 1997), the court applied the general “requirement to make a timely, specific objection during trial” waiver standard to jury instructions, (citing Dilliplaine v. Lehigh Valley Trust, 322 A.2d 114, 117 (Pa. 1974)). Takes, however, did not mention any prior submission of points for charge, or other method of preserving an objection.

In Bezerra v. National Railroad Passenger, 760 A.2d 56 (Pa. Super. 2000), the court applied the “specific objection” standard to find waiver despite a party's prior filing of “proposed points for charge.” A similar waiver filing was made in Krepps v. Snyder,112 A.3d 1246 (Pa. Super. 2015), where the court held “one must object to errors, improprieties or irregularities at the earliest possible stage of the adjudicatory process to afford the jurist hearing the case the first occasion to remedy the wrong and possibly avoid an unnecessary appeal.” In addition, Pa. R.A.P. 302(b) supports a strong “specific exception” standard.

A related question is whether an issue, otherwise preserved by a point for charge, is waived by a party's subsequent failure to object to the jury charge as given. A number of courts have held that the “specific objection” requirement means that prior submission of a pertinent point for charge is not enough, as in McNeil v. Owens-Corning Fiberglas, 680 A.2d 1145, 1149 (Pa. 1996); Bezerra, 750 A.2d at 64-65. In Krepps, even though the trial court did not make any request for objections, the party's failure to do so, was waiver, despite prior submission of points for charge, see also Mannick v. Commonwealth, Department of Labor & Industry, 732 A.2d 26, 28 (Pa. Commw. 1999) (failure to object to charge as given trumped earlier point for charge). The Pennsylvania Supreme Court, by a 4-3 vote, so held in a criminal case, although conceding the “counterintuitive” nature of that requirement:

The pertinent rules, therefore, require a specific objection to the charge or an exception … to preserve an issue involving a jury instruction. Although obligating counsel to take this additional step where a specific point for charge has been rejected may appear counterintuitive, as the requested instruction can be viewed as alerting the trial court to a defendant's substantive legal position, it serves the salutary purpose of affording the court an opportunity to avoid or remediate potential error, as in Commonwealth v. Pressley, 887 A.2d 220, 224 (Pa. 2005).

A second line of decisions holds that, even in the absence of an objection contemporaneous with the giving of the charge, error is preserved if the issue was raised in a point for charge that was not ultimately given.

It has long been the law in this commonwealth that in order to preserve for appellate review an issue concerning the correctness of a trial court's charge to the jury, the complaining party must submit a specific point for charge or make a timely, specific objection to the charge as given.

Broxie v. Household Finance, 372 A.2d 741, 743 (Pa. 1977); accord Meyer v. Union Railroad, 865 A.2d 857, 861 (Pa. Super. 2004) (citing Broxie for proposition that “the general principle reiterated in Bezerra … does not extend to situations where, as here, a party previously submitted a proposed point for charge”); Brancato v. Kroger, 458 A.2d 1377, 1380 (Pa. Super. 1983) (same). Compare Shinal v. Toms, 162 A.3d 429, 451 n.26 (Pa. 2017) (filing of “brief in opposition” sufficient to satisfy contemporaneous objection requirement without “specific objection” at trial); Cave v. Wampler Foods, 961 A.2d 864, 870 (Pa. Super. 2008) (“detailed, contemporaneous objections to the trial court's rejection of certain points for charge” sufficient to preserve issue, without further objection at time of charge).

On at least one occasion the Pennsylvania Supreme Court interpreted a similarly worded rule of crminal procedure not to require an additional objection to preserve an already stated objection to a jury charge, as in Commonwealth v. Ford-Bey, 472 A.2d 1062, 1064 (Pa. 1984) (no waiver despite failure to reiterate previously stated exceptions). The precise wording of current Rule 227.1(d) also tends to support this view, as the only actions it requires for preservation are: raising of an exception by an “available” and “appropriate” method, specifically including a “point for charge;” and “specifying” that ground in a post-trial motion. Rule 227.1(b) thus includes no requirement for an additional objection to be lodged to a jury instruction at the time the charge is given, whether or not invited by the trial court.

Thus, on one of the most common appellate waiver situations—jury charge/points for charge— current Pennsylvania appellate authority is in a state of fundamental confusion, forcing appellate practitioners to recommend a belt-and-suspenders approach at least arguably odds with Rule 227.1(b). Nor can such practitioners predict, with any degree of certainty, whether waiver will strike down a client that, at trial, only filed points for charge.

Fortunately, this muddle probably will not last much longer. The Pennsylvania Supreme Court recently heard argument in Jones v. Ott, 12 MAP 2017. According to the Superior Court opinion in Jones, 2016 WL 5418827 (Pa. Super. Sept. 27, 2016) (memorandum), the plaintiff/appellant filed points for charge that addressed the relevant issues, but that was all. The charging conference was off-the-record, thus whether any objections were made at that point was unknown. Later, when the charge was given to the jury, the trial court asked if “there was anything with the charge that either [party] wanted to put on the record?”, and the appellant's trial counsel stated he had “no issues with the charge.” On that procedural record (or lack of one), the Superior Court panel found that the points for charge were waived.

The Supreme Court accepted the appeal in Jones v. Ott, 168 A.3d 1238, 1239 (Pa. 2017), solely on waiver as the question presented: 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 … 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? Jones was argued on Oct. 17.

Jones thus presents the relatively uncommon situation in which a Pennsylvania appellate court—indeed, our highest court—will decide a purely waiver issue, separate from, and without its attention being diverted by, any substantive merits issue. Almost regardless of the outcome, since this is not a plaintiff- or defendant-specific problem, appellate practitioners can at least look forward to some additional degree of clarity when this case is decided.

James M. Beck, a member of the Reed Smith life sciences health industry group, focuses his practice on complex personal injury and products liability litigation. He has experience in developing legal defenses, master briefs and dispositive motions in numerous mass torts, and has prepared amicus briefs on behalf of a variety of national organizations.