Kirksey, R., Aplt. v. Children's Hospital of Pgh.

[J-109-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
ROBERT KIRKSEY, JR., : No. 18 WAP 2020
:
Appellant : Appeal from the Order of the
: Superior Court entered October 9,
: 2019 at No. 421 WDA 2018,
v. : affirming the Judgment of the Court
: of Common Pleas of Allegheny
: County entered April 12, 2018 at
CHILDREN'S HOSPITAL OF PITTSBURGH : No. GD 14-010939.
OF UPMC, UNIVERSITY OF PITTSBURGH :
PHYSICIANS, AND SATYANARAYANA : ARGUED: December 2, 2020
GEDELA, M.D., :
:
Appellees :
CONCURRING STATEMENT
JUSTICE WECHT DECIDED: DECEMBER 10, 2020
I join the Court’s decision to dismiss this case as improvidently granted. Those
who wish to challenge a trial court’s refusal to give a requested jury instruction must
preserve that challenge.
An appellate court can consider only matters appearing within the certified record
of the case. Commonwealth v. Martz, 926 A.2d 514, 524 (Pa. Super. 2007); see also
Commonwealth v. Killen, 680 A.2d 851, 852 n.5 (Pa 1996) (“[M]atters not part of the
record will not be considered on appeal.”). It is the appellant’s duty to ensure that the
reviewing court has a complete record. Commonwealth v. Saranchak, 675 A.2d 268, 275
(Pa. 1996).
For an appellate court to evaluate a requested jury instruction, the proposed point
for charge must be part of the record. “A requested point for charge that was presented
to the trial judge becomes part of the record when the point is read into the record, or filed
in the office of the prothonotary prior to filing a motion for post-trial relief regarding the
requested point for charge.” Pa.R.C.P. 226(a). When a standard suggested jury
instruction is requested, it may be sufficient that the number alone is referenced in the
record. But, when a non-standard instruction is proposed, the exact language must be
part of the record so that the reviewing court can evaluate whether the instruction was
warranted by the evidence presented.
This does not end counsel’s work. Merely making the proposed point for charge
part of the record is not sufficient on its own to preserve a challenge to the denial of a jury
instruction. We recently addressed this issue in Jones v. Ott, 191 A.3d 782 (Pa. 2018).
In that case, the plaintiff filed her proposed points for charge with the prothonotary. Three
requested charges were not given, although there was no record of the trial court ruling
upon those proposed instructions. Further, the plaintiff did not object to the charge and,
when asked by the trial court if anything about the jury charge needed to be put on the
record, plaintiff’s counsel responded that there were no issues with the charge. The
plaintiff then filed a post-trial motion contending that the trial court erred in failing to give
the three requested instructions. The trial court denied the motion.
The plaintiff then appealed. The Superior Court held that the plaintiff had waived
her claim when, upon inquiry from the trial judge, plaintiff’s counsel stated that there were
no issues with the jury instructions. Additionally, because there was no record of the trial
court’s ruling on the proposed points for charge, the appellate panel was unable to
determine “whether the trial court denied the proposed points of charge or if [the plaintiff]
acquiesced in their exclusion.” Id. at 786 (quoting Jones v. Ott, 930 WDA 2015, 2016 WL
5418827 at *4 n.2 (Pa. Super. 2016)). Based upon the waiver of the claim, the Superior
Court affirmed.
[J-109-2020, 18 WAP 2020] - 2
Upon review, this Court affirmed. First addressing preservation requirements, we
noted that a timely, specific objection must be made on the record. The record did not
reflect such an objection. The plaintiff contended that the filing of the proposed instruction
and a post-trial motion sufficed to preserve the claim. A plurality of this Court disagreed.
We outlined the procedure for ensuring a challenge is preserved. “[A]bsent a specific
contemporaneous objection[,] a litigant must file a proposed point for charge [pursuant to
Pa.R.C.P. 226(a)], the trial court must rule upon that instruction, and the litigant must
challenge the ruling in its post-trial motion.” Jones, 191 A.3d at 791. A fourth justice
agreed with the rationale for these requirements, but would have applied them only on a
prospective basis. Id. at 793 (Saylor, C.J., concurring); see id. at 791 n.13.1
In addition, a majority of the Court held that plaintiff’s counsel had affirmatively
waived any challenge to the jury instructions by responding that there were no issues with
the charge as given. Because “an issue preserved at one stage . . . can be waived at
another stage,” id. at 792, counsel must state any objections (or reference a prior
recorded objection) when asked directly by the trial judge.
It is not sufficient for an attorney to get a ruling and file a post-trial motion without
making the proposed point for charge part of the record. Nor is it sufficient for an attorney
to file proposed points for charge and a post-trial motion without getting a ruling on the
record. To ensure preservation of challenges to jury instructions, attorneys must
familiarize themselves with the case law and the relevant rules, and must make a
complete and full record in order to enable appellate review of the merits of their claims.
1 Three justices would have held that filing the points for charge and raising the issue
in a post-trial motion were sufficient to preserve the issue for review. Jones, 191 A.3d at
793 (Dougherty, J., dissenting), 796 (Mundy, J., dissenting).
[J-109-2020, 18 WAP 2020] - 3