UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
May 13, 1982
LURIA BROTHERS & COMPANY, INC., A CORPORATION
THOMAS R. ALLEN, JR., AND MORTON J. GREENE, TRADING AS ECONOMY INDUSTRIAL PROPERTIES, A PARTHERSHIP, APPELLANTS
Before: SEITZ, Chief Judge, and ALDISERT and ROSENN, Circuit Judges
STATEMENT SUR DENIAL OF PANEL REHEARING
ALDISERT, Circuit Judge
In their petition for rehearing, appellants contend that the argument which we declined to consider in Part III-A of our opinion was presented to the district court and that this court overlooked or misapprehended the portion of the record reflecting that presentation. Our search of the record indicated that appellants had never argued to the district court that the receiver for Bollinger lacked authority to surrender the Bollinger-Economy lease. The parties now agree that the argument was presented in defendants' brief in support of their motion for new trial or judgment n.o.v. following the damages portion of the bifurcated trial. That brief was not included in the record forwarded to this court.
Nevertheless, although it appears that the argument was presented to the district court, we believe the advancement of a new legal theory at that point in those proceedings was unreasonably late. Nearly two years after the entry of the liability phase opinion -- which they contend was based upon an error of law -- and after the close of testimony on damages and a determination of an award, appellants finally informed the court of an allegation of error. Thus, without interposing an objection or otherwise giving their adversary or the district court an opportunity to meet or possibly cure the purported error, they had allowed the court to conduct a jury trial on damages that were, in appellants' present view, predicated upon an error of law.
It is the essence of the common law tradition that objections be timely presented at trial, so that (a) an adversary may respond by testimony or otherwise, and (b) a trial court may make appropriate rulings in the context of a trial setting. To make an objection in a post-trial motion on an issue not preserved at trial by proper objection runs counter to that tradition.
In light of these circumstances, we continue to decline to consider appellants' new theory and accordingly we deny appellants' petition for panel rehearing.
We also deny appellee's petition for panel rehearing on the question of attorney's fees under Pennsylvania law.
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