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DILLIPLAINE v. LEHIGH VALLEY TRUST COMPANY (07/01/74)

decided: July 1, 1974.

DILLIPLAINE, APPELLANT,
v.
LEHIGH VALLEY TRUST COMPANY



Appeal from order of Superior Court, Oct. T., 1972, No. 110, affirming judgment of Court of Common Pleas of Lehigh County, Jan. T., 1968, No. 239, in case of Wayne F. Dilliplaine v. Lehigh Valley Trust Company, Executor Under the Last Will and Testament of James A. Burdette, a/k/a James Albert Burdette.

COUNSEL

Edward N. Cahn, for appellant.

Richard F. Stevens, with him Thomas F. Traud, Jr., and Butz, Hudders & Tallman, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Manderino joins the opinion of the Court. Mr. Justice O'Brien concurs in the result. Concurring Opinion by Mr. Justice Manderino. Concurring and Dissenting Opinion by Mr. Justice Pomeroy. Mr. Justice Eagen joins in this concurring and dissenting opinion.

Author: Roberts

[ 457 Pa. Page 256]

On April 23, 1966, automobiles driven by Wayne F. Dilliplaine and James A. Burdette collided. Subsequently Burdette died of causes unrelated to the accident. Dilliplaine then brought this trespass action against the executor of Burdette's estate, Lehigh Valley Trust Company, for injuries suffered in the accident.

The jury found for defendant and Dilliplaine's motion for a new trial was denied. The Superior Court affirmed.*fn1 We granted the petition for allowance of appeal.*fn2 The sole issue is whether the trial court erred by instructing the jury that the deceased was presumed to have exercised due care at the time the accident occurred.

Appellant Dilliplaine frankly concedes that he neither offered a point for charge nor took specific exception to the due care instruction actually given.*fn3 In his motion for a new trial and again on appeal, he argued that in giving the presumption of due care instruction the trial judge committed basic and fundamental error.

[ 457 Pa. Page 257]

Appellant espouses the theory that an appellate court must consider trial errors claimed to be basic and fundamental despite the absence of any objection or specific exception at trial. Millili v. Alan Wood Steel Co., 418 Pa. 154, 156-57, 209 A.2d 817, 818 (1965); Patterson v. Pittsburgh Rys., 322 Pa. 125, 128, 185 A. 283, 284 (1936). This theory has been applied primarily to asserted infirmities in a trial court's instructions to the jury.

We believe that two practical problems with basic and fundamental error make it an unworkable appellate procedure. Initially, appellate court recognition of alleged errors not called to the trial court's attention has a deleterious effect on the trial and appellate process. Also, despite its repeated articulation, the theory has never developed into a principled test, but has remained essentially a vehicle for reversal when the predilections of a majority of an appellate court are offended.

Appellate court consideration of issues not raised in the trial court results in the trial becoming merely a dress rehearsal. This process removes the professional necessity for trial counsel to be prepared to litigate the case fully at trial and to create a record adequate for appellate review. The ill-prepared advocate's hope is that an appellate court will come to his aid after the fact and afford him relief despite his failure at trial to object to an alleged error. The diligent and prepared trial lawyer -- and his client -- are penalized when an entire case is retried because an appellate court reverses on the basis of an error opposing counsel failed to call to the trial court's attention. Failure to interpose a timely objection at trial denies the trial court the ...


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