Upon Further Review
Filing Proposed Points for Charge No Longer Suffices to Preserve Objections to Jury Instructions, Pa. Supreme Court Rules
Unless you were monitoring new Pennsylvania Supreme Court rulings in the second half of August, you may have missed an important decision that changed how objections to a trial court’s jury instructions in a civil case must be preserved going forward. In Jones v. Ott, No. 12 WAP 2017 (Pa. Aug. 21, 2018), the Pennsylvania Supreme Court by a sharply divided 4-3 vote held that, in the future, merely filing proposed points for charge without more will be insufficient to preserve an objection to a trial court’s contrary jury instructions.
The Jones case was tried to a jury, which returned a verdict in favor of the defendant. On appeal, the plaintiff argued that the trial court committed reversible error by failing to instruct the jury as to negligence per se. Before trial, the plaintiff’s counsel filed proposed jury instructions that included a jury charge covering the concept of negligence per se. As is often the case in Pennsylvania state trial courts, the charging conference during which the parties discussed with the trial judge the proposed jury charge in this civil case was not transcribed.
What the record did disclose was that the jury charge that the trial court actually delivered contained no mention of the concept of negligence per se. The record also reflected that the trial judge asked counsel for the parties if they had anything they wanted to place on the record with regard to the jury charge that the trial court had just delivered, and counsel for the plaintiff responded, “I have no issues with the charge, Your Honor.”
The four justices in the majority in Jones agreed that plaintiff’s counsel’s statement that he had no issues with the charge sufficed to waive any ability to argue on appeal that the trial court committed reversible error by failing to instruct the jury regarding negligence per se. Yet three justices would have gone further to hold that merely filing proposed points for charge, without additionally objecting on the record to the trial court’s refusal to use those proposed points and obtaining an on-the-record ruling on the proposed points for charge, failed to preserve an objection to the extent that a trial court’s jury charge failed to incorporate what the advocate’s proposed points for charge had included. Justice David N. Wecht wrote the lead opinion in Jones, which Justices Max Baer and Debra Todd joined in full.
Chief Justice Thomas G. Saylor issued a concurring opinion stating that he agreed that something more than merely filing preserved points for charge should be required to preserve an objection to a trial court’s jury instructions (to the extent they diverged from an advocate’s proposed points for charge), but Saylor made clear that he would impose this requirement of something more “on a prospective basis only.” Accordingly, Wecht’s opinion observed in a footnote that this aspect of the court’s holding would only apply going forward to cases tried to a jury after the opinion in Jones issued on Aug. 21.
Justices Kevin M. Dougherty and Sallie Updyke Mundy issued dissenting opinions, and Justice Christine Donohue joined both dissenting opinions. The dissents observed that earlier case law and the procedural rules governing how a party can preserve an objection to a trial court’s jury instructions both envisioned that filing proposed points for charge, without more, would suffice to preserve an objection for appeal to the extent that the trial court’s actual jury instructions diverged from a party’s proposed points for charge. Dougherty’s dissent also noted that the preferred way to change what the governing rules of procedure mean is through the rule amendment process rather than through an opinion that contradicts the current rules’ actual language.
Last month’s Pennsylvania Supreme Court ruling in Jones is noteworthy for many reasons. First, it will be interesting to see whether the relevant Pennsylvania Rules of Civil Procedure will now be amended to eliminate the language that the dissenting opinions persuasively argued would currently lead an advocate to conclude that merely filing proposed points for charge would suffice to preserve an objection to the extent the proposed points for charge conflicted with a trial court’s actual jury charge.
Second, the Jones ruling demonstrated once again that, on a court consisting of five justices elected as Democrats and two elected as Republicans, plaintiffs are not guaranteed to win every case. One Republican supported the court’s ruling, while one dissented from it. And the Democratic justices were divided 3-2 over the proper outcome. To be sure, the issue this case resolved will now apply equally to the losing party at trial, whether the plaintiff or the defendant. In Jones, the plaintiff lost, but in the next case to present this issue, it might be the defendant that lost at trial and failed adequately to preserve an objection to the trial court’s jury charge.
Third, it will be interesting to see whether the Jones ruling, going forward, will be understood to have overruled related case law holding that a party’s filing of a so-called binding jury instruction, instructing the jury to return a verdict in favor of the party filing the jury instructions, suffices without more to preserve that party’s ability to argue for judgment notwithstanding the verdict (j.n.o.v.) after trial. Under prior law, a party’s filing of such a binding jury instruction was understood to preserve the ability to seek j.n.o.v. after trial even where the losing party never sought a directed verdict or j.n.o.v. while the trial was underway.
The logic of Jones would seem to dictate that a party would need to move for j.n.o.v. during trial to preserve the issue for post-trial review and subsequent appeal, and that merely filing proposed points for charge including a binding jury instruction to return a verdict in favor of the party filing the jury instructions no longer will suffice by itself to preserve the issue for further review.
If you are involved in the trial of civil cases in Pennsylvania state court, you should be sure to become familiar with the Pennsylvania Supreme Court’s important new opinion in Jones v. Ott, which now governs how objections to a trial court’s jury instructions must be preserved to be available for appellate review.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at firstname.lastname@example.org. You can access his appellate Web log at http://appellateblog.com/.