K.A. Garrick, Sr. v. City of Philadelphia Prison System - CFCF/PICC PO T. Hatcher ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kerium Allen Garrick, Sr., :
Appellant :
:
v. : No. 1003 C.D. 2017
: Submitted: December 22, 2017
City of Phila/Philadelphia :
Prison System – CFCF/PICC :
Probation Officer Tabitha Hatcher :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: January 22, 2018
Kerium Allen Garrick, Sr. (Plaintiff) appeals, pro se, from a jury
verdict entered against him and in favor of the City of Philadelphia, Philadelphia
Prison System, CFCF and PICC, and Probation Officer Tabitha Hatcher
(collectively, Defendants) in the Court of Common Pleas of Philadelphia County
(trial court). Because Plaintiff never filed a post-trial motion with the trial court
after the verdict as required by Rule 227.1(c)(1) of the Pennsylvania Rules of Civil
Procedure, we dismiss his appeal.
The pertinent facts are as follows. Plaintiff, acting pro se, brought a
false arrest, false imprisonment and federal civil rights action against Defendants
alleging that: he was imprisoned for four years before his criminal trial in
violation of Rule 600 of the Pennsylvania Rules of Criminal Procedure; the prison
authorities knew he had an allergy to seafood but offered only fish for Friday night
dinners; and upon his release on probation, his probation officer maliciously and
without probable cause had him arrested and jailed.
On Friday, July 7, 2017, a 12-person jury was selected and trial
commenced the following Monday. However, because one of the jurors was
unavailable due to personal reasons and no substitute was available to fill the
vacancy, all parties agreed that trial would continue with an 11-juror panel.1
1
As pertinent, the following exchange occurred between the parties and the trial court:
THE COURT: Are you all in agreement to go down to 11?
[PLAINTIFF]: I mean if we don’t have a substitute.
THE COURT: You cannot -- at this point we can’t bring
somebody in who wasn’t part of the trial.
[PLAINTIFF]: Exactly. Then we have to go with the 11. . . .
THE COURT: It’s that or a mistrial, which would be a new trial;
do it all over again.
[PLAINTIFF]: Let them deliberate on the information that’s
proceeding and everything that transpired already.
THE COURT: Sir, I don’t understand what you say. When you
say, let them deliberate. Who is the them?
[PLAINTIFF]: The 11 jurors.
***
(Footnote continued on next page…)
2
On July 11, 2017, the jury returned a verdict in favor of Defendants
and against Plaintiff. Plaintiff then verbally “declared” a mistrial because he was
not provided a 12-person jury, which the trial court rejected because Plaintiff
“didn’t raise that issue when we talked about it . . . [and] agreed to going ahead
with 11 jurors.” (S.R.R. at 85b.) The trial court continued, “Well, you can file
whatever motions you would like. But I’m not declaring a mistrial at this time. . . .
Post-trial motions have to be filed within ten days.” (S.R.R. at 85b-86b.)
Notwithstanding the trial court’s direction, Plaintiff did not file a post-trial motion
and instead filed a notice of appeal on July 14, 2017.
On appeal, Defendants assert – and we agree – that Plaintiff’s appeal
must be dismissed because he failed to file a post-trial motion with the trial court,
thereby waiving all issues on appeal. See Pa. R.C.P. No. 227.1(c)(1) (“Post-trial
motions shall be filed within ten days after . . . verdict . . . in the case of a jury trial
. . . .”). As our Supreme Court explained, “[Rule] 227.1 requires parties to file
post-trial motions in order to preserve issues for appeal. If an issue has not been
raised in a post-trial motion, it is waived for appeal purposes.” L.B. Foster
Company v. Lane Enterprises, Inc., 710 A.2d 55, 55 (Pa. 1998); see also Burrell
Education Association v. Burrell School District, 674 A.2d 348, 350 (Pa. Cmwlth.
1996) (“Only issues which a party specifically raises in its post-trial motions are
preserved and will be considered on appeal.”).
(continued…)
THE COURT: All right. Let’s proceed with the nonsuit motion.
(Supplemental Reproduced Record (S.R.R.) at 50b.)
3
Accordingly, for the foregoing reasons, we dismiss Plaintiff’s appeal.2
_______________________________
DAN PELLEGRINI, Senior Judge
2
In a separate motion, Defendants moved to strike certain extra-record documents
contained in Plaintiff’s brief. Because of the manner in which we resolved this matter, we need
not reach this issue on appeal.
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kerium Allen Garrick, Sr., :
Appellant :
:
v. : No. 1003 C.D. 2017
:
City of Phila/Philadelphia :
Prison System – CFCF/PICC :
Probation Officer Tabitha Hatcher :
ORDER
AND NOW, this 22nd day of January, 2018, it is hereby ordered that
Kerium Allen Garrick, Sr.’s appeal in the above-captioned matter is dismissed.
Jurisdiction relinquished.
_______________________________
DAN PELLEGRINI, Senior Judge