Tecce, T. v. Hally, J.

J-A25021-14
2014 Pa. Super. 262
TANYA HELENA TECCE, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JOHN MICHAEL HALLY, :
:
Appellee : No. 495 EDA 2014
Appeal from the Order entered January 14, 2014,
Court of Common Pleas, Delaware County,
Civil Division at No. 2008-008805
BEFORE: DONOHUE, WECHT and PLATT*, JJ.
CONCURRING OPINION BY DONOHUE, J.: FILED NOVEMBER 21, 2014
I agree with the learned Majority’s determination that Wife waived the
issue she presents on appeal. I write separately because I do not share the
Majority’s distaste for that result. The law is eminently clear that we are
required to find waiver both because Wife failed to preserve the issue in the
trial court and because she has filed a grossly deficient appellate brief.
The Supreme Court of Pennsylvania has discussed the vital importance
of issue preservation as follows:
Issue preservation is foundational to proper
appellate review. Our rules of appellate procedure
mandate that ‘[i]ssues not raised in the lower court
are waived and cannot be raised for the first time on
appeal.’ Pa.R.A.P. 302(a). By requiring that an issue
be considered waived if raised for the first time on
appeal, our courts ensure that the trial court that
initially hears a dispute has had an opportunity to
consider the issue. Lincoln Philadelphia Realty
Assoc. v. Bd. or Revision of Taxes of
*Retired Senior Judge assigned to the Superior Court.
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Philadelphia, [] 758 A.2d 1178, 1186 ([Pa.] 2000).
This jurisprudential mandate is also grounded upon
the principle that a trial court, like an administrative
agency, must be given the opportunity to correct its
errors as early as possible. Wing v. Com.
Unemployment Comp. Bd. of Review, [] 436 A.2d
179, 181 ([Pa.] 1981). Related thereto, we have
explained in detail the importance of this
preservation requirement as it advances the orderly
and efficient use of our judicial resources. See
generally Dilliplaine v. Lehigh Valley Trust Co.,
[] 322 A.2d 114, 116–17 ([Pa.] 1974). Finally,
concepts of fairness and expense to the parties are
implicated as well.
In re F.C. III, 2 A.3d 1201, 1211-12 (Pa. 2010).
It is axiomatic that “[i]n order to preserve an issue for appellate
review, a party must make a timely and specific objection at the appropriate
stage of the proceedings before the trial court. Failure to timely object to a
basic and fundamental error will result in waiver of that issue.” Thompson
v. Thompson, 963 A.2d 474, 475-76 (Pa. Super. 2008); see also Mazlo v.
Kaufman, 793 A.2d 968, 969 (Pa. Super. 2002). “On appeal the Superior
Court will not consider a claim which was not called to the trial court’s
attention at a time when any error committed could have been corrected.”
Thompson, 963 A.2d at 476 (emphasis added). As noted in the passage
above, Rule of Appellate Procedure 302, “Requisites for Reviewable Issue,”
provides that “[i]ssues not raised in the lower court are waived and cannot
be raised for the first time on appeal.” Pa.R.A.P. 302(a). Moreover, the
Rules of Appellate Procedure provide that an appellant must indicate in both
the statement of the case and argument portions of his or her brief where
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the issue was raised or preserved in the court below. Pa.R.A.P. 2117(c);
Pa.R.A.P. 2119(e). The law and our Rules could not be more clear: Mother
failed to preserve her issues in the trial court, and so this Court is precluded
from considering them.
Secondly, Wife’s appellate brief contains precisely zero citation to
relevant authority. Rule of Appellate Procedure 2119(a) provides as follows:
The argument shall be divided into as many parts as
there are questions to be argued; and shall have at
the head of each part--in distinctive type or in type
distinctively displayed--the particular point treated
therein, followed by such discussion and citation
of authorities as are deemed pertinent.
Pa.R.A.P. 2119(a) (emphasis added). The failure to provide discussion
of and citation to relevant authority is a substantial impediment to our
review; for that reason, it results in waiver of the issue. Giant Food
Stores, L.L.C. v. THF Silver Spring Dev., L.P., 959 A.2d 438, 444 (Pa.
Super. 2008) (“The Rules of Appellate Procedure state unequivocally that
each question an appellant raises is to be supported by discussion and
analysis of pertinent authority. … Failure to do so constitutes waiver of the
claim.”); see also Coulter v. Ramsden, 94 A.3d 1080, 1089 (Pa. Super.
2014) (finding appellant’s issue waived due to lack of “any meaningful
discussion of relevant legal authority”).
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Wife cites only one “authority”: an unpublished memorandum decision
from this Court.1 The Majority correctly points out that our Rules prohibit its
citation and the memorandum has no precedential value. See Maj. Mem. at
4 n.2. Thus, Wife’s complete and utter failure to provide citation to relevant
authority is another basis for this Court to find that Wife has waived the
issues presented for review.
Before eventually properly applying the principles of issue preservation
and waiver, the Majority dissects the lax procedure employed by the trial
court; specifically, its failure to swear witnesses and allow the parties the
opportunity for cross-examination. I do not dispute that witnesses are to be
sworn before testifying. Section 5901 of the Judicial Code provides that
“[e]very witness, before giving any testimony shall take an oath in the usual
or common form[.]” 42 Pa.C.S.A. § 5901(a).2 However, I do not agree with
the Majority’s broad conclusion that the failure to administer an oath
necessarily renders testimony a “nullity.” Maj. Op. at 5.
In this regard, the Majority quotes Commonwealth ex. rel. Freeman
v. Superintendent of State Corr. Inst. at Camp Hill, 242 A.2d 903 (Pa.
Super. 1968), for the proposition that the taking of testimony is meaningless
1
Wife’s counsel on appeal was not her trial counsel. Wife’s counsel on
appeal was counsel to one of the parties on appeal in the unpublished
memorandum decision upon which she relies in the case before us.
2
Pennsylvania Rule of Evidence 603 mirrors this requirement, providing
that “[b]efore testifying, a witness must give an oath or affirmation to testify
truthfully. It must be in a form designed to impress that duty on the
witness’s conscience.” Pa.R.E. 603.
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without the administration of an oath. Maj. Mem. at 4-5. Freeman,
however, dealt specifically with the effects of the United States Supreme
Court decision of In re Gault, 387 U.S. 1 (1967), a landmark case that “set
forth several procedural requirements which must be met in juvenile
proceedings” and altered the informal manner in which juvenile delinquency
proceedings had been routinely held in Pennsylvania. In that case, this
Court held that in the wake of Gault, “a determination of delinquency …
cannot be sustained in the absence of [s]worn testimony subjected to the
opportunity to cross-examination” where such requisites were not previously
required. Freeman, 242 A.2d at 908. It is clear that the quasi-criminal
nature of the delinquency proceedings spurred these changes to those
informal proceedings, and that the discussion regarding the impact of
routinely accepting unsworn testimony was made specifically in connection
with these considerations. See id. at 907-08.
There is scant case law discussing the failure to swear a witness.3
However, this Court has considered waiver in connection with the failure to
object when no oath is administered prior to testimony taken by deposition.
3
In addition to the Freeman case cited by the Majority, in Dunsmore v.
Dunsmore, 455 A.2d 723 (Pa. Super. 1983), this Court remanded a case
“with instructions to start over again” because of various procedural errors,
including the trial court’s decision to allow the father in that case to testify
without being sworn because he was a practicing attorney. Unlike in the
present case, however, there is absolutely no indication that the appellant-
mother in Dunsmore failed to lodge a proper objection at the time of the
hearing, and so Dunsmore provides no guidance on the issue of whether a
party may waive the failure to swear a witness as an issue for appeal.
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As with judicial proceedings, the witness in a deposition must be sworn prior
to giving testimony. Id.; Pa.R.C.P. 4017(a). This Court has held that the
lack of objection to a witness’s failure to be sworn at the time of a deposition
results in the waiver of this error.4 Wenham Transp., Inc. v. Radio
Const. Co., 154 A.2d 301, 303 (Pa. Super. 1959). Indeed, the Rules of Civil
Procedure governing discovery now mandate this result: objections
regarding the administration of the judicial oath are waived if not raised at
the time of the deposition. Pa.R.C.P. 4016(c). There is, to me, no reasoned
differentiation in this context between deposition testimony and testimony
offered at a hearing. If the objection to the error is raised at the deposition,
it can be corrected; if it is raised at the hearing, the error can be corrected.
In either context, the failure to object prevents the opportunity to correct
the error.
I disagree, too, with the Majority’s broad statement that a judicial
proceeding must involve the presentation of evidence. Maj. Mem. at 6
(“When we speak of a judicial proceeding, we speak of a hearing, not a
conversation.”). There are myriad judicial proceedings that do not require
the taking of testimony or reception of evidence; for instance, proceedings
to resolve preliminary objections, motions for judgment on the pleadings,
and motions for summary judgment. See Pa.R.C.P. 1028, 1034, 1035.2.
4
The unsworn deposition testimony was offered for use at trial. The
purpose for which the deposition testimony was offered is not clear from the
Wenham opinion.
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Moreover, even in a proceeding where evidence is received, by testimony or
otherwise, a party may always waive his or her right to present evidence or
cross-examine witnesses; indeed, a party may choose to do so for tactical
reasons. As these facets of a judicial proceeding may be waived, they
cannot be, as the Majority contends, indispensable for a valid judicial
proceeding.
It is of little wonder that no objection was made to the trial court’s
failure to administer the oath. The transcript of the hearing leads to the
inevitable conclusion that the parties were satisfied with the manner in
which the trial court proceeded. The Majority correctly describes what
occurred in the proceeding in question as argument by the parties’ counsel
interspersed with statements by the parties themselves. After addressing
the issues raised by Wife in her petition, the trial court said, “All right, I
believe I understand the parties’ positions on all three issues, so I thank you
and I will take this under advisement … .” N.T., 1/9/14, at 46. At no time
did either party’s counsel inquire of the trial court when testimony would be
taken or seek to cross-examine the adverse party as to any statement he or
she made during the course of the proceeding. Of importance, Wife’s
counsel voiced no concern that the proceeding was adjourned without the
formal introduction or reception of evidence. The obvious conclusion is that
the parties had no problem with the manner in which the proceedings
occurred or that the presiding judge would decide the case on the
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information presented. It is only now, after receiving an unfavorable
decision, that Wife takes issue with the manner in which the proceedings
were conducted and seeks an impermissible second bite at the apple. 5
Simply, this Court is prohibited from addressing an issue not raised
and preserved in the trial court. There should be no hesitance by our Court
to recognize that prohibition and abide by it. I wholeheartedly agree with
the Majority that family law attorneys and the courts before whom they
appear should abide by formal rules and procedure. See Maj. Mem. at 6
n.3. And so must we. As an intermediate appellate court, we are required
by rule or Supreme Court edict to find waiver in a myriad of circumstances.
I am struck by the injustice I perceive as a result of the mandatory
application of mandatory waiver principles in many circumstances.
However, I do not share the Majority’s distaste for finding waiver in this
case. Both parties were represented by counsel. No objections were lodged
in the trial court. While it is troubling that trained lawyers and an
experienced trial judge would allow the hearing to proceed as it did, waiver
is the only possible outcome in this case.
For these reasons, I concur in the outcome reached by the Majority.
5
In a footnote, the Majority chides the lax practice of family law attorneys
and courts and encourages them to adopt formality in their practice by
abiding by the Rules of Civil Procedure. Maj. Mem. at 6 n.3. I agree that to
the extent some counsel and trial courts are lax, the legal profession,
litigants, and the judicial system require adherence to the rules of procedure
and evidence to preserve confidence in the outcome of cases. Trial courts
should be diligent and trial counsel should insist, by objection to laxity, that
the appropriate procedures are followed.
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