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MILLARD J. SHAFFER v. PULLMAN TRAILMOBILE (10/01/87)

filed: October 1, 1987.

MILLARD J. SHAFFER
v.
PULLMAN TRAILMOBILE, DIVISION OF M.W. KELLOGG CO., A CORPORATION, APPELLANT



Appeal from the Judgment entered in the Court of Common Pleas of Allegheny County, Civil Division, No. G.D. 81-19406.

COUNSEL

David M. Neuhart, Pittsburgh, for appellant.

Arthur Cutruzzula, Pittsburgh, for appellee.

Cirillo, President Judge, and Montemuro and Tamilia, JJ. Cirillo, President Judge, concurs in the result by Tamilia, J. Montemuro, J., concurs with statement.

Author: Tamilia

[ 368 Pa. Super. Page 202]

Appellant, Pullman Trailmobile, a division of M.W. Kellogg Co. (Pullman), appeals from the judgment entered following the jury verdict and the Order entered by the court below on August 12, 1986, denying Pullman's motion for post-trial relief.

The facts surrounding the appeal are as follows. Appellee, Millard J. Shaffer, was employed as a truck driver to haul steel, interstate, on flatbed trailers. On August 22, 1979, appellee was assigned to pick up a trailer which had previously been loaded; his job was to tie down the load with chains. The chains were tied around the load and were fastened to the trailer bed by the use of chain binders or snap binders. Appellee used an extension pipe to get more leverage on the snap binders. The chain in question broke, thrusting appellee backward against the edge of another flatbed trailer parked along side his trailer and then to the ground. Appellee sued the appellant, under 402A of the Restatement of Torts, Second, as it was the distributor of the chain he alleged was defective.*fn1 Following a jury verdict for appellee in the amount of $175,000, appellant sought judgment n.o.v., or in the alternative, a new trial. When the trial court denied that motion, appellant filed this timely appeal.

The first issue appellant brings before us for review is that the trial court improperly instructed the jury on the malfunction doctrine. Because appellant failed to except to the jury charge at trial, however, we are unable to review

[ 368 Pa. Super. Page 203]

    this allegation of error. Rule 302 of the Pennsylvania Rules of Appellate Procedure provides:

Rule 302. Requisites for Reviewable Issue

(a) General rule. Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.

(b) Charge to jury. A general exception to the charge to the jury will not preserve an issue for appeal. Specific exception shall be taken to the language or omission complained of.

The note to this rule reminds us,

Rule 2117(c) (statement of place of raising or preservation of issues) and Rule 2119(e) (statement of place of raising or preservation of issues) require that the brief expressly set forth in both the statement of the case and in the argument reference to the place in the record where the issue presented for decision on appeal has been raised or preserved below.

Note to Pa.R.A.P. 302.

A specific exception must be lodged to preserve an objectionable charge for post-trial motions. Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981); Crosbie v. Westinghouse Elevator Co., 297 Pa. Super. 304, 443 A.2d 849 (1982); see also Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). In addition to a timely specific objection to a trial court's charge to the jury, appellate review may be preserved by submitting "a specific point for charge." Broxie v. Household Finance Co., 472 Pa. 373, 377, 372 A.2d 741, 743 (1977); Loos & Dilworth v. Quaker State Oil Refining Corp., 347 Pa. Super. 477, 500 A.2d 1155 (1985); Dambacher by Dambacher v. Mallis, 336 Pa. Super. 22, 485 A.2d 408 (1984) appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985); Brancato v. Kroger Co., Inc., 312 Pa. Super. 448, 458 A.2d 1377 (1983).

Our careful review of the trial transcript reveals appellant neither took exception to the trial judge's charge nor submitted a specific point for charge. In fact, he stated: "Judge, I ...


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