Supreme Court of Pennsylvania Establishes New Requirement for Preservation of Certain Jury-Instruction Errors in Civil CasesOn September 4, 2018 by Schnader
On August 21, a sharply divided Supreme Court of Pennsylvania held that a party to a civil case waives any challenge to a trial court’s failure to give a proposed jury instruction if the party does not obtain an on-the-record ruling by the trial court regarding the proposed instruction.
The plaintiff in Jones v. Ott, No. 12 WAP 2017 (Pa. Aug. 21, 2018), submitted proposed jury instructions regarding negligence per se prior to the start of the trial, but the trial court never issued a ruling on the proposal. While the court may have addressed the issue during trial at the charge conference, the conference was not transcribed and thus, there was no record on the issue. The proposed instructions were not given to the jury and, following an adverse jury verdict, the plaintiff filed a post-trial motion contending that it was error not to give her proposed instructions.
The trial court found the issue waived because “the record is devoid of any discussion relative to the proposed charge,” and the Superior Court affirmed for the same reason. The Supreme Court granted allowance of appeal and, in a 4-3 decision, held that a challenge to a trial court’s failure to give a proposed jury instruction “is waived when the appellant fails to secure a record ruling from the trial court upon the proposed charge.”
Rule 226(a) of the Pennsylvania Rules of Civil Procedure provides that a proposed instruction becomes part of the record when read into the record or filed with the court (as plaintiff’s proposed instruction was in Jones), and Rule 227.1(b)(1) provides that an issue is preserved for post-trial review if raised by a proposed point for charge (as was done in Jones). Nonetheless, the Supreme Court held that filing a proposed instruction was insufficient to preserve the issue if there was no record of the trial court ruling on the proposal. In short, to preserve for post-trial and then appellate review an alleged error regarding the failure to give a particular jury instruction, a party must make the proposed instruction part of the record pursuant to Rule 226 and then “obtain an explicit trial court ruling upon the challenged instruction.”
As a result of the decision in Jones, litigants intending to challenge on appeal the trial court’s failure to give a requested instruction must ensure that the trial record includes an explicit ruling on any such proposed instruction. This can be done by a formal court order entered on the docket denying the proposed instruction, a transcribed charge conference at which the court ruled that it would not give the proposed instruction, or an on-the-record ruling on an objection to the court’s failure to give the requested instruction, made after the jury is instructed and before it retires to deliberate.