filed: February 6, 1981.
EUGENE A. TICE AND DIANE R. LINDSAY BRADLEY, ADMINISTRATRIX OF THE ESTATE OF ROBERT LINDSAY, DECEASED
NATIONWIDE LIFE INSURANCE CO., APPELLANT
No. 2938 October Term, 1978, Appeal from Order of the Court of Common Pleas of Philadelphia County, Trial Division, Civil Section, No. 2580 September Term 1974.
Marvin Comisky, Philadelphia, for appellant.
Michael Goldman, Philadelphia, for appellees.
Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Brosky and Wickersham, JJ. Spaeth, J., files a concurring opinion, in which Cercone, President Judge, and Price, J., join. Cavanaugh, J., files a dissenting opinion.
[ 284 Pa. Super. Page 222]
This appeal by Nationwide Life Insurance Co. (hereafter Nationwide) is presently before our court for the second time. Basically, Eugene A. Tice, plaintiff below, filed a complaint in assumpsit on September 16, 1974, seeking the proceeds of a $50,000 life insurance policy issued by appellant on the life of Robert Lindsay. After appellant filed an answer and new matter alleging that Tice had no insurable interest in the life of Robert Lindsay, the insured's widow, Diane Lindsay Bradley, intervened as a party plaintiff on behalf of the insured's estate.
Bradley filed interrogatories to be answered by appellant on June 16, 1976, which were not answered. Utilizing the sanction procedures authorized by Philadelphia Civil Rule 4005(d)*fn1 the Prothonotary of Philadelphia entered a final order of judgment by default on December 9, 1976.
Nationwide filed a petition to open judgment entered against it. Judge Goodheart entered an Order dismissing
[ 284 Pa. Super. Page 223]
that petition and Nationwide appealed to our court and we affirmed.*fn2 We held then that the lower court had not erred in holding that appellant failed to reasonably explain or reveal a legitimate excuse for the delay that occasioned the default judgment. It is important to note that appellant also argued on appeal a contention that this default judgment was not entered in strict compliance with Rule 4005(d), attempting thereby to seek to benefit by our then recent decision in Strickler v. United Elevator Co. (Inc.), 248 Pa. Super. 258, 375 A.2d 86 (1977).*fn3
We held, however, that Rule 4005*(d) was in effect at all relevant times, and any contention that this default judgment
[ 284 Pa. Super. Page 224]
was not entered in compliance therewith could and should have been presented to the lower court. We refused, therefore, to consider appellant's Strickler argument for the first time on appeal.
More than a year later Philadelphia Civil Rule 145 [formerly Philadelphia Civil Rule 4005(d)] was before a three judge panel of our court in Gonzales v. Procaccio Bros. Trucking Co., 268 Pa. Super. 245, 407 A.2d 1338 (1979).*fn4 In Gonzales the Prothonotary of Philadelphia had entered an interlocutory order pursuant to Philadelphia Civil Rule 145 which directed appellee to answer appellant's interrogatories within 30 days or suffer a judgment of non pros. Thereafter judgment of non pros was entered by the prothonotary and more than a year later appellee moved to strike the judgment of non pros. The lower court, by the Honorable Abraham J. Gafni, entered an order striking the judgment of non pros which order was based upon a finding that the procedure prescribed by Philadelphia Civil Rule 145 was in conflict with Pa.R.C.P. 4019 and therefore invalid.
In Gonzales, we said:
"Although the several courts of common pleas may properly adopt local rules, such rules are invalid to the extent that they conflict with or are inconsistent with the Pennsylvania Rules of Civil Procedure. City of Philadelphia v. Percival, 464 Pa. 308, 346 A.2d 754 (1975); Gilmer v. Philadelphia Transportation Company, 237 Pa. Super. 57, 60, 346 A.2d 346, 348 (1975); Act of June 21, 1937, P.L. 1982, No. 392, § 2, as amended, 17 P.S. § 62.
"In 1977, when appellant's judgment was stricken, Pa.R.C.P. No. 4019(a)(1) provided that the "court may, on motion, make an appropriate order if a party wilfully fails to file answers . . . to written interrogatories served under rule 4005." Subsection (c) identified the types of orders which a court may enter when acting under subsection (a).
[ 284 Pa. Super. Page 225]
"Philadelphia Civil Rule No. 145 purports to establish a procedure by which the Prothonotary shall, on praecipe and certification of notice, "enter an interlocutory order requiring the adverse party to file answers within thirty (30) days . . ." If answers are not filed within such period of thirty days and the moving party follows the prescribed procedure, the interlocutory order will become final and, on praecipe, a final sanction order will be entered. The mandatory sanction, if the defaulting party is a plaintiff, is an order entering a judgment of non pros. The procedure established by the Philadelphia rule does not require intervention by the court and does not permit the Prothonotary to exercise discretion in fashioning the sanction order.
"Pa.R.C.P. No. 4019 is clear. It establishes an unequivocal and mandatory procedure. Where answers to interrogatories have not been filed, a motion must be presented to the court to determine the default. Hanchey v. Elliott Truck Brokerage Company, 421 Pa. 131, 135, 218 A.2d 743, 745 (1966). Upon finding that a default has occurred, "the court may . . . make an appropriate order." Subdivision (c) of Pa.R.C.P. No. 4019 amplifies the scheme of the rule by designating specific sanction orders which may be appropriate under particular circumstances. The imposition of specific sanctions, however, is largely within the discretion of the court. Pompa v. Hojnacki, 445 Pa. 42, 45, 281 A.2d 886, 888 (1975). See also: 10 Goodrich-Amram 2d § 4019(a):2.1, 3.1; 5A Anderson Pennsylvania Civil Practice § 4019.2. As a general rule, sanctions will not be imposed in the absence of some wilful disregard or disobedience of a court order or an obligation expressly stated in the Rules. In any event, it is the court which has been given responsibility for overseeing discovery conducted by the parties and which may enter appropriate sanctions to insure the adequate and prompt discovery of matters allowed by the Rules of Civil Procedure.
"This responsibility cannot be delegated to a ministerial officer such as a Prothonotary. Although he acts as clerk
[ 284 Pa. Super. Page 226]
for the court of common pleas, the Prothonotary possesses no judicial powers. Irwill Knitwear Corp. v. Wexler, 229 Pa. Super. 48, 323 A.2d 23 (1974); Smith v. Safeguard Mutual Insurance Company, 212 Pa. Super. 83, 86, 239 A.2d 824, 826 (1968); Warner v. Cortese, 5 Cmwlth. 51, 288 A.2d 550 (1972).
"In the instant case, we hold that Philadelphia Civil Rule 145 is in conflict with Pa.R.C.P. No. 4019 and invalid. Therefore, the Prothonotary lacked the power to enter a judgment of non pros against appellee, and a judgment so entered was null and void. The trial court properly ordered the same stricken.
"Order affirmed." (Footnotes Omitted)
Id., 268 Pa. Super. at 249-253, 407 A.2d at 1340-1342.
Following our affirmance in Tice v. Nationwide Life Ins. Co., 253 Pa. Super. 118, 384 A.2d 1257, supra, the appellant, Nationwide, then filed a motion to strike the default judgment. The lower court denied the motion and a three judge panel of our court heard the appeal.
Subsequently, we granted a petition for reargument en banc in order to consider the impact of Gonzales, supra, on this and other recent decisions.*fn5
[ 284 Pa. Super. Page 227]
We agree with our panel conclusion in Gonzales, supra, that Philadelphia Civil Rule 145 [formerly Philadelphia Civil Rule 4005(d)] is in conflict with Pa.R.C.P. 4019 and therefore invalid. We hold that the prothonotary lacked the power to enter judgment and that the judgment so entered was subject to avoidance. Such a judgment must be stricken, if as here, an appeal was pending when Gonzales was handed down.*fn6 We further hold that appellant has not waived its right to such application in the instant case
[ 284 Pa. Super. Page 228]
because of a failure to argue the invalidity of Philadelphia Civil Rule 145 in the lower court.*fn7
Accordingly, we reverse the order of the lower court and strike the judgment entered on behalf of appellee.
SPAETH, Judge, concurring:
I agree that the default judgment taken against appellant should be stricken. I write separately to explain why I agree and to state what I believe should be the effect of our decision in this case on the many other judgments taken over the years under Philadelphia Civil Rule 145. At one time our consideration might have begun and ended with the statement that judgments obtained under an invalid rule were void and of no effect for any purpose. However, I believe that a consideration of how the law has evolved should lead to a much narrower holding.
What does it mean to say that a judgment is "void"? Many older cases say that it means that the judgment is of no effect, at any time, for any purpose. Sometimes this is said quite colorfully, as, for example, that a void judgment "is a mere blur on the record . . . which it is the duty of a court of its own motion to strike off, whenever its attention is called to it." Romberger v. Romberger, 290 Pa. 454, 457, 139 A. 159, 160 (1927). See also, Haverford Township School District v. Herzog, 314 Pa. 161, 171 A. 455 (1934); Bryn Mawr National Bank v. James, 152 Pa. 364, 25 A. 823 (1893);
[ 284 Pa. Super. Page 229]
the defect, and on whether there has been reliance on the judgment. Id. at 4-5.
These developments in the law should encourage us to take the view of the Restatement (Second); we should decide whether the judgment should be stricken only after examining every aspect of the particular context in which the attack on the judgment is made.
Instead of asking, "What effect does a 'void' judgment have?," we should ask, "Do we want our decision in Gonzales v. Procaccio Bros. Trucking Co., 268 Pa. Super. 245, 407 A.2d 1338 (1979), to be applied retroactively?" By stating the problem before us as a problem of retroactivity, we may escape the tyranny of the label "void."
To be sure, a court was not always free thus to restate the problem. At common law, there could be no problem of retroactivity. The notion was that courts did not make the law, they found it. When a court overruled a decision, the new, overruling, decision was not new law but the true law, now discovered; the old, overruled, decision represented an unsuccessful attempt to discover the true law, from which it followed that the old decision had never been the law. It is this sort of thinking that underlies such cases as Norton v. Shelby County, supra. It is now established, however, that a court may hold that a legal principle is valid so far as the past is concerned, even though from now on it will not be valid. Thus a court may even decline to apply a decision to the case before it, making the decision prospective only. Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932) (CARDOZO, J.) (to avoid injustice and hardship, courts may say that decisions though later overruled "are law none the less for intermediate transactions," id. at 364, 53 S.Ct. at 148).
Ordinarily an appellate court will apply a decision announcing a change in the law to the case before the court. The new principle will then control other cases pending in the trial courts or adjudicated by the trial courts but pending on direct appeal.
[ 284 Pa. Super. Page 231]
Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) (collecting cases and reviewing the development of the law). When a new principle is thus applied to a pending case, it may be said that there is no problem of "true retroactivity." Commonwealth v. Williams, 232 Pa. Super. 339, 331 A.2d 875 (1974). A problem of true retroactivity arises only when a change in the law occurs after a case has been finally litigated -- i. e., tried and not appealed, or appealed and appeal decided -- and the attempt is then made to apply that change in a collateral proceeding, such as on a petition for habeas corpus. Id. When confronted with a problem of true retroactivity, a court must carefully balance all of the interests involved, before deciding whether the change in law should or should not be applied. The court will "look[ ] to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." Linkletter v. Walker, supra 381 U.S. at 629, 85 S.Ct. at 1737. This is so whether the case is civil or criminal. Id. at 628, 85 S.Ct. at 1737.
This case is before us on direct appeal from the lower court's order denying appellant's motion to strike the default judgment. That is not the same as a direct appeal from the judgment itself. But neither is it collateral in the same sense that a habeas corpus petition is collateral. A motion to strike a judgment is difficult to characterize, because although "its immediate or direct object is to nullify the judgment . . . it is made in an action separate from, and thus collateral to, the action in which the judgment was rendered." Introductory Note to Chapter 5, "Relief From a Judgment," Restatement (Second) of Judgments (Tent. Draft No. 6, February 10, 1979) at 5.
If we regard the appeal here as a direct appeal from a judgment, we are not faced with a case of true retroactivity, and no reason appears why we should not apply the change of law announced in Gonzales. If we regard the appeal as from an order entered in a proceeding collateral to the judgment, we are faced with a case of true retroactivity, and it becomes necessary to balance the interests involved.
[ 284 Pa. Super. Page 232]
Doing so, I conclude that we should still apply Gonzales. Any reliance on the judgment has been limited; the judgment has not been satisfied; and appellee has been on notice that it was being objected to. Furthermore, if the judgment is stricken, appellee will not be out of court but will only have lost the benefit of an automatic sanction imposed on appellant for its failure to answer interrogatories. This failure, moreover, was not appellant's own, but occurred because of the neglect of appellant's counsel. See Tice v. Nationwide Life Ins. Co., 253 Pa. Super. 118, 123, 384 A.2d 1257, 1259 (1978). So far as appellant itself is concerned, it has pleaded a meritorious defense. Id., 253 Pa. Super. at 122, 384 A.2d at 1259. If, therefore, we were to refuse to apply Gonzales retroactively, and consequently hold that the judgment should not be stricken, we might do an injustice in the sense of enabling appellee to hold on to a victory that on the merits, or substantively, as distinguished from procedurally, was undeserved.
I do not mean to suggest that this case should turn on its peculiar facts, which we know only because the attack on the judgment here was started by a petition to open. Tice v. Nationwide Life Ins. Co., supra. Those facts do lend weight to the conclusion that Gonzales should be applied, but I believe we may go further and say that Gonzales should be applied in any case pending on appeal when it was handed down. If such a case involves a problem of true retroactivity at all, still, I submit, justice is more likely to be achieved if Gonzales is applied, the judgment stricken, and the action permitted to proceed to a decision on the merits, than if Gonzales is not applied and the judgment permitted to stand.
The foregoing does not dispose of the case, for we must still consider the possible impact of the doctrine of waiver, which has developed concurrently with the doctrine of retroactivity. It may be that the two doctrines conflict. In other words, should we say that even though as a general rule Gonzales should be applied in any case pending on appeal
[ 284 Pa. Super. Page 233]
when it was handed down, here appellant has waived its right to such application?
We know that the right to seek a determination that Rule 145 was invalid may be waived. In Doner v. Jowitt and Rodgers Co. 484 Pa. 496, 399 A.2d 402 (1979), the plaintiff-appellant wanted to make the very argument made to us in Gonzales -- that Philadelphia Rule 145 was invalid because in conflict with Pa.R.C.P. 4019. The Supreme Court held, however, that it would not hear the argument because it had not been made before the lower court, our court, or in the petition for allowance of appeal. Four months later we handed down Gonzales.
Here, appellant, as has been mentioned, first attacked the judgment by petition to open. When we affirmed the lower court's order denying that petition, Tice v. Nationwide Life Ins. Co., supra, appellant filed a motion to strike the judgment. In that motion it argued that the rule of Strickler v. United Elevator Co. (Inc.), 248 Pa. Super. 258, 375 A.2d 86 (1977), should be applied; it did not argue that Philadelphia Rule 145 was invalid because in conflict with Pa.R.C.P. 4019; no doubt it did not because we had not yet handed down Gonzales and therefore the argument had not occurred to appellant. After the lower court denied the motion to strike, on the ground that because of the prior petition to open, Strickler could not be raised, and after appellant had appealed the denial, we handed down Gonzales. Only then, pending our decision on appeal, did appellant argue Gonzales. Query, was that too late? Should we hold that because appellant could have argued to the lower court -- i. e., even though we had not handed down Gonzales, still, appellant could have thought of the argument -- that Philadelphia Rule 145 was invalid, but did not, it may not so argue to us now?
As a general rule, when there has been a change in the law while a case is on appeal, prior failure to argue that there should have been that change has not been deemed a waiver. In Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966), the appellants were given the benefit on appeal of
[ 284 Pa. Super. Page 234]
based on a change in the law that occurred while a direct appeal was pending, if that argument was not made to the lower court.
At least two members of the Court have indicated that they would find waiver in such a case, unless the change in the law established a right constitutionally required. Commonwealth v. Ernst, 476 Pa. 102, 381 A.2d 1245 (1977) (opinion in support of affirmance by POMEROY, J., joined by EAGEN, C. J.). See also Commonwealth v. Lynch, 477 Pa. 390, 383 A.2d 1263 (1978) (concurring opinion by POMEROY, J., joined by EAGEN, C. J.). However, in Ernst three justices joined an opinion sharply critical of any distinction between constitutional and non-constitutional decisions. After discussing cases in which a change in the law was applied on direct appeal, without regard either to the nature of the change or to waiver, Justice ROBERTS wrote, "[T]hese decisions rest upon the principle that it is unjust to require an appellant whose case is not yet final to endure the burden of a rule now recognized as offensive to our jurisprudence [footnote omitted]." 476 Pa. at 112, 381 A.2d at 1250 (opinion in support of reversal by ROBERTS, J., joined by O'BRIEN and MANDERINO, JJ).
The right before us -- the right not to have a default judgment entered against one by the Prothonotary as an automatic sanction for failure to make discovery -- is not based on either the United States or Pennsylvania Constitution, but rather on the principle that a local rule may not conflict with a Pennsylvania rule of civil procedure. Gonzales v. Procaccio Bros. Trucking Co., supra. Because we lack clear guidance from the Supreme Court on whether the benefit of a non-constitutional change in the law is waived and therefore may not be argued on direct appeal if the issue was not raised in the lower court, we must engage in our own analysis of the right before us.
In my opinion, we should hold that appellant has not waived the right to argue Gonzales. The doctrine of waiver is supposed to make the courts work more efficiently. If a litigant is required to make all his arguments first to the
[ 284 Pa. Super. Page 236]
lower court -- at the peril of not being able to make them to the appellate court -- the lower court will be given the opportunity to correct its errors, and an appeal may be avoided. Even if an appeal is not avoided, the appellate court will have the benefit of a full record, which will include whatever evidence was submitted bearing on the argument, and also the lower court's response to the argument. See Commonwealth v. Throckmorton, 241 Pa. Super. 62, 68-69, 359 A.2d 444, 447 (1976). Here, as an appellate court we have lost nothing because appellant did not first argue to the lower court that Rule 145 was invalid. This is not a case where it may be said that if an argument had been made first to the lower court, evidence might have been offered and received by the lower court bearing on the argument. Here, once the default judgment had been entered under Rule 145, it was too late for the lower court to receive any evidence. The record before us is just as full as it would have been if appellant had argued the invalidity of Rule 145 to the lower court. It is true that because appellant did not so argue, we do not have the benefit of a lower court opinion in response to the argument, but here that fact in no way inconveniences us. The issue is purely one of law, and the controlling decision, Gonzales, is one that we have already handed down. Since, therefore, none of the objectives sought to be achieved by the doctrine of waiver would be achieved if the doctrine were applied, we should not apply it.
If we examine the cases regarding "void" judgments in light of the doctrines of retroactivity and waiver, we may conclude, I suggest, that the effect to be given Gonzales will vary, as follows:
First, suppose the judgment sought to be stricken has been satisfied. Rule 145 permitted two sorts of judgment: a judgment of non pros against a plaintiff, and a judgment of liability against a defendant. A judgment against a plaintiff may be regarded as "satisfied" if the applicable statute of limitations has run since the judgment was entered; a judgment against a defendant may be regarded as
[ 284 Pa. Super. Page 237]
"satisfied" if damages have been assessed and paid. Once a judgment has been satisfied, it no longer exists, and hence is not subject to attack. Sanctis v. Checco, 195 Pa. Super. 193, 171 A.2d 542 (1961), following Lance v. Mann, 360 Pa. 26, 60 A.2d 35 (1948), and Federal Insurance Co. v. Robinson, 82 Pa. 357 (1876). Thus, a satisfied judgment should not be stricken on the basis of Gonzales.
Second, suppose a motion to strike a judgment entered under Rule 145, denial of the motion, and either no appeal or an unsuccessful appeal, all before Gonzales. In the interests of finality, the judgment should not be stricken on the basis of Gonzales. In Washington v. Liberi, 273 Pa. Super. 48, 416 A.2d 1082 (1979) (filed December 21, 1979), we refused to apply Gonzales retroactively in a case where a motion to strike, not raising the invalidity of Rule 145, had been made in 1977 and denial of the motion was not appealed. (The appellant had unsuccessfully petitioned the lower court for reconsideration of its denial, again without raising the invalidity issue.) I am not persuaded to a contrary result by broad language in older cases about an appellate court sua sponte striking a "void" judgment.
Third, suppose a motion to strike a judgment entered under Rule 145, on grounds other than the invalidity of the rule, denial of the motion, and an appeal pending when Gonzales was handed down. The present case is such a case. The judgment should be stricken on the basis of Gonzales.
Fourth, suppose a motion to strike a judgment entered under Rule 145, on grounds including the invalidity of the rule, denial of the motion, and an appeal pending before this court. Such a case presents no problem, either of retroactivity or waiver, and the judgment should be stricken on the basis of Gonzales.
Fifth, suppose a motion to strike a judgment entered under Rule 145, filed since Gonzales was handed down, and still before the lower court. In such a case, the doctrine of waiver should apply. The judgment should be stricken on the basis of Gonzales, if Gonzales is argued to the lower court. If Gonzales is not argued to the lower court, it may
[ 284 Pa. Super. Page 238]
not on appeal be argued to us. Again, I am not persuaded to a contrary result by broad language in older cases.
Sixth, and finally, suppose a motion to strike a judgment entered under Rule 145 has never been filed, and the judgment is still unsatisfied. This court has so far not retreated from the bright-line rule that laches do not run against a "void" judgment. See, e. g., Strickler v. United Elevator Co., Inc., 257 Pa. Super. 542, 391 A.2d 614 (1978). It nevertheless appears to me that the approach of the Restatement (Second) of Judgments implies some qualification of this broad rule. The length of time a "void" judgment has been on the books may affect both the opportunity to object to it and and the likelihood of reliance on it -- two of the factors the Restatement suggests be considered in determining enforceability. In a case falling into this final category, I should use the approach of the Restatement to determine whether it would be in the interests of justice to grant a motion to strike on the basis of Gonzales.
For the foregoing reasons I concur in the order reversing the decision of the lower court.
CAVANAUGH, Judge, dissenting:
Because in my view the majority and concurring opinions do serious harm to our strong policy of waiver, I dissent.
The concept of waiver -- that issues must be raised in the lower court to be considered on appeal -- is basic to Pennsylvania appellate review. Pennsylvania Rule of Appellate Procedure 302 declares: "[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. Moreover, in 1974 our Supreme Court held that even fundamental error may be waived in both criminal and civil cases. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974).
Situations in criminal cases in which an issue is waived include the following: if the issue is not raised in a timely filed omnibus pretrial motion, Pa.R.Crim.P. 306; if there is no timely motion for a mistrial, Commonwealth v. Randolf,
[ 284 Pa. Super. Page 239280]
Pa. Super. 189, 421 A.2d 469 (1980); if there is no specific objection to the jury instruction, Pa.R.Crim.P. 1119; Commonwealth v. Corkan, 467 Pa. 33, 354 A.2d 537 (1976); if there is no objection to the admission of evidence at trial, Commonwealth v. Griffin, 271 Pa. Super. 228, 412 A.2d 897 (1979) allocatur denied (1980); if the defendant is not tried within the time provided in Pa.R.Crim.P. 1100 and there is no timely motion for discharge, Commonwealth v. Byrd, 250 Pa. Super. 250, 378 A.2d 921 (1977); if the issue is not presented in written, specific post-verdict motions, Pa.R.Crim.P. 1123; Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); if there is no timely motion to withdraw a guilty plea, Pa.R.Crim.P. 321; Commonwealth v. Baylor, 279 Pa. Super. 304, 420 A.2d 1346 (1980); if the issue is not contained in a timely filed motion to modify sentence, Pa.R.Crim.P. 1410; Commonwealth v. Gottshalk, 276 Pa. Super. 102, 419 A.2d 115 (1980); if the petitioner in a Post Conviction Hearing Act proceeding had a previous opportunity to raise the issue and cannot prove extraordinary circumstances, 19 P.S. § 1180-4; if the issue is not briefed or argued during the post-verdict proceedings even though it is contained in post-verdict motions, Commonwealth v. Holtzer, 480 Pa. 93, 94, 389 A.2d 101, 104 (1978); Commonwealth v. Perry, 279 Pa. Super. 32, 420 A.2d 729 (1980); if the issue is not included in a statement of matters complained of on appeal, Pa.R.A.P. 1925; if on appeal the issue is not set out or suggested by the statement of questions involved and not adequately developed in the argument, Pa.R.A.P. 2116; Commonwealth v. Pounds, 490 Pa. 621, 630 n.11, 417 A.2d 597, 601 n.11 (1980); if on appeal the jurisdiction of the appellate court is not raised, 42 Pa.C.S.A. § 704; Pa.R.A.P. 741.
Situations in civil cases in which an issue is waived include the following: failure to specifically object to the jury instruction, Pa.R.A.P. 302; Dilliplaine v. Lehigh Valley Trust Co., supra ; failure to object to the admission of evidence at trial, Rubenstein v. J. E. Kunkel Co., 244 Pa. Super. 474, 368 A.2d 819 (1976); failure to include the issue in
[ 284 Pa. Super. Page 240]
exceptions, Pa.R.C.P. 1038, 1518; failure to include the issue in post-verdict motions, Benson v. Penn Central Transportation Co., 463 Pa. 37, 342 A.2d 393 (1975); failure on appeal to raise the issue of the appellate court's jurisdiction, 42 Pa.C.S.A. § 704; Pa.R.A.P. 741.
Even constitutional errors may be waived. Commonwealth v. Romberger, 474 Pa. 190, 378 A.2d 283 (1977).
Constitutional errors may be waived, for example, by not raising a specific objection on such ground at trial, Commonwealth v. Danko, 281 Pa. Super. 97, 421 A.2d 1165 (1980); by not raising the issue of sentencing in the lower court, Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1975); by not notifying the Attorney General, Pa.R.C.P. 235; Matter of Adoption of Christopher P., 480 Pa. 79, 389 A.2d 94 (1978); but see Commonwealth ex rel. Stein v. Stein, 487 Pa. 1, 406 A.2d 1381 (1979); by not notifying the Attorney General on appeal, Pa.R.A.P. 521; Commonwealth v. Ashford, 268 Pa. Super. 225, 231 n.3, 407 A.2d 1328, 1330 n.3 (1979).
Thus waiver is a policy firmly established in our jurisprudence. There are, however, situations in which failure to raise an issue in the lower court will not result in waiver on appeal. In Kuchinic v. McCrory, 422 Pa. 620, 222 A. 897 (1966), appellants asked that the rule of Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796 (1964), be applied to them. Griffith had changed Pennsylvania's choice of law rules. The trial in Kuchinic had been conducted under the existing choice of law rules and no objection had been raised by the appellants at trial. While Kuchinic was on appeal, Griffith was decided. The Supreme Court applied Griffith to Kuchinic even though the appellee argued that the issue had been waived. The court reasoned that the policy behind waiver -- the opportunity of the lower court to correct its errors -- would not be thwarted by holding that there was no waiver in Kuchinic. This is because in Kuchinic the case was tried according to the law in existence at that time and, if an objection had been made at trial, the lower court would have had to overrule it and thus would have been unable to
[ 284 Pa. Super. Page 241]
correct its "error." Kuchinic, supra, 422 Pa. at 626, 222 A.2d at 901. Thus in Kuchinic there was no waiver because an objection in the lower court would have been unavailing.
The instant case, however, differs materially from Kuchinic. Here, unlike Kuchinic, there was no appellate court decision that governed the issue which could have been raised below. Without such appellate court decision, the lower court, if given the opportunity, could have decided the issue in favor of appellant. Indeed, that is precisely what happened in Gonzales v. Procaccio Brothers Trucking Company, 268 Pa. Super. 245, 407 A.2d 1338 (1979). In Gonzales the lower court held Philadelphia Civil Rule 145 invalid and on appeal we affirmed. Therefore, if the appellant in the instant case would have made the same argument to the lower court, the lower court could have corrected its error. Since the reason for not finding waiver in Kuchinic is absent here, Kuchinic does not govern the instant case and waiver may be applied.
The instant case also materially differs from Commonwealth v. Cheeks, 429 Pa. 89, 239 A.2d 793 (1968).
In Cheeks the appellant raised the issue that his Sixth Amendment right to confrontation had been violated. He had not raised the issue at trial but rather did so through the Post Conviction Hearing Act proceeding. The Supreme Court held there was no waiver for failure to raise the issue at trial since "[i]t would be manifestly unfair to hold appellant to a waiver when this waiver is alleged to have occurred at a time when neither the defendant nor his attorney had any way of knowing that there existed a right to be waived." Id., 429 Pa. at 95, 239 A.2d at 796. At the time of Cheek's trial the Sixth Amendment right to confrontation had not been made applicable to the states. Id.; Pointer v. Texas, 380 U.S 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). Since Pointer announced a new principle, there was no waiver by failing to raise the issue at trial. The instant
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case does not involve the announcement of a new principle.*fn1 There is no change in the law here. In Gonzales, supra, we merely decided that Philadelphia Civil Rule 145 was in conflict with Pa.R.C.P. 4019 and therefore invalid. Gonzales, supra, 268 Pa. Super. at 253, 407 A.2d 1342. Gonzales was based on the well-established principle that local rules cannot be inconsistent with or in conflict with rules promulgated by the Supreme Court of Pennsylvania. This principle derives from a statute which existed at least as early as 1937. Act of June 21, 1937, P.L. 1982, § 2 as amended, 17 P.S. § 62 (repealed effective June 27, 1978). The last case before Gonzales which reaffirmed this principle was decided in 1975. Gilmer v. Philadelphia Transportation Company, 237 Pa. Super. 57, 346 A.2d 346 (1975). Gilmer predates the entry of the default judgment in the instant case. Since Gonzales did not announce a new principle, but instead applied a long-established principle to a particular local rule, the instant case is unlike Cheeks in which a new principle was involved. Therefore, Cheeks does not support the view that there is no waiver.
When this case was previously before us in Tice v. Nationwide Life Insurance Company, 253 Pa. Super. 118, 384 A.2d 1257 (1978) allocatur denied (Tice I), appellant asked us to give it the benefit of a decision which was filed while the appeal was pending. Appellant argued that the decision, which construed the same local rule involved here, represented a change in law and therefore failure to raise the issue below did not result in waiver. We held that although there was no prior appellate decision construing the local rule, the local rule was in effect at all times and therefore waiver applied. Id. 253 Pa. Super. at 126, 384 A.2d at 1261. Likewise, here 17 P.S. § 62 has been in effect at all times and therefore waiver should apply.
The teaching of Kuchinic and Cheeks is that there is no waiver when, pending appeal, an appellate decision overrules
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a prior appellate decision or an appellate decision announces a new principle. They represent limited exceptions to our policy of waiver. Indeed in Commonwealth v. Ernst, 476 Pa. 102, 381 A.2d 1245 (1977), Justice Roberts, quoting from Commonwealth v. Simon, 446 Pa. 215, 285 A.2d 861 (1971) said:
failure to raise an issue in a prior proceeding is not a waiver when the legal principles upon which the issue is premised are newly announced in an appellate decision rendered subsequent to the date of the prior proceeding.
Commonwealth v. Ernst, supra 476 Pa. at 117, 381 A.2d at 1252. (Opinion in support of reversal). Since Gonzales did not overrule a prior decision or establish a new principle, our ordinary rules of waiver should apply.
The majority and concurring opinions, however, do not apply our waiver policy, but instead unnecessarily and unwisely depart from it.
In the majority's view since the only issue is one of law and since that issue has been decided, there is no waiver. Majority Opinion, ante at 786, n.8. According to the concurring opinion, since there is no need for a fuller record and the issue has already been decided, there is no waiver. Concurring Opinion, ante at 790-791. Although these views consider some of the policies underlying waiver, they fail to adequately consider other policy of waiver, i. e., providing the lower court with an opportunity to correct its errors so that an appeal may be obviated and so that the litigants' and court's (therefore the public's) time and expense may be saved. If we only needed a full record and the issue to have already been decided, we would not have applied waiver, for example, when appellant was before us in Tice I. There the record was full and we had already decided the issue in Strickler v. United Elevator Company, 248 Pa. Super. 258, 375 A.2d 86 (1977); nevertheless we held that waiver applied.
Applying waiver in the instant case will not be unjust. Appellant delayed answering the interrogatories for nearly six months.
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Tice I, supra, 253 Pa. Super. at 122, 384 A.2d at 1259. We affirmed the lower court's holding that appellant did not reasonably explain that delay. Any delay in answering interrogatories may not only delay the ultimate disposition of the case, but may also tax our limited judicial resources in enforcing compliance with the rules of discovery. Appellant has had numerous opportunities to raise the issue it seeks to raise here. It failed to do so in its petition to open, in its first appeal to this court, in its petition for allowance of appeal, and in its motion to strike. It raises the issue here for the first time, twenty-eight months after the judgment was entered. Since appellant has not reasonably explained the delay in its answering the interrogatories and since it has had numerous opportunities to raise the issue involved here, I conclude that the application of waiver would not be unjust.
Finally, I point out that nothing the court says today precludes the lower court on remand from properly imposing sanctions pursuant to Pa.R.C.P. 4019. See Majority Opinion, ante, n.6.
I dissent; I would affirm the order below.*fn2