Appeal from the Order of the Superior Court of Pennsylvania, No. 1053, 1054 Philadelphia 1984, entered on November 28, 1986, insofar as it affirmed the Order of the Court of Common Pleas of Philadelphia County at March Term, 1976, No. 5109, dated March 26, 1985, denying the City of Philadelphia's Motion for Judgment n.o.v.
Nix, C.j., and Larsen, Flaherty, Zappala, Papadakos and Stout, JJ. McDermott, J., did not participate in the consideration or decision of this case. Stout, Former Justice, did not participate in the decision of this case. Larsen, J., files a dissenting opinion in which Papadakos, J., joins.
We granted allowance of appeal to the City of Philadelphia (City) to determine whether Superior Court erred in affirming in part an order of the Court of Common Pleas of Philadelphia County, sitting en banc, insofar as it denied the City's post-trial motion for judgment notwithstanding the verdict.*fn1 Because the City properly preserved the issue of whether it owed a duty to the Appellee, Edward Scarborough, contrary to the Superior Court's holding that the issue was waived, the order of Superior Court is in part reversed and the City's motion for judgment not withstanding the verdict is granted.
The facts underlying this personal injury action are that on June 24, 1974, Edward, then aged nine, was playing
basketball with his friends along Thirteenth Street, a dead end street in the City of Philadelphia. When he took a shot at the basket, the ball ricocheted off of the backboard, rolled to the end of the street and through a chain link fence, which stretched to the adjacent McFerran Street, and down an embankment toward the railroad tracks. Edward climbed through a hole in the fence and down the embankment to recover the ball. He then walked back up the embankment and threw the ball under the fence. Instead of returning to the basketball game, Edward, who heard a train approaching, went back down the embankment to the railroad tracks, which were readily accessible by various other routes. He then, as he had done before, hopped a freight train owned by the Reading Railroad Company. After travelling a short distance he tried to hop off the train; however, his pant leg got caught. In the process of trying to loosen it, he slipped and fell under the wheels of the train. Both of Edward's legs were severed just below his knees.
Appellees, Edward Scarborough and his mother Patricia Scarborough, instituted this action for damages in 1976 against Andrew L. Lewis and Joseph L. Castle, trustees for the Reading Company (hereinafter referred to collectively as Reading). Reading joined the City as an additional defendant on the grounds that it had failed to keep the fence in repair and had thereby breached a duty owed to Edward Scarborough to protect him from the dangerous condition created by the movement of trains on the railroad's property.*fn2
Following a jury trial in April, 1981 before Judge I. Raymond Kremer, a verdict was returned against both Reading and the City in favor of Edward Scarborough in the amount of $3,000,000 and in favor of Patricia Scarborough in the amount of $300,000. Delay damages pursuant to Pa.R.C.P. 238 were added and the verdicts were molded
to the sums of $3,454,500 and $345,400 respectively. Reading and the City both filed post-trial motions and extensive post-trial briefs.*fn3 The post-trial motions were argued and denied.*fn4 On appeal, a Superior Court panel reversed the order of the trial court insofar as it dismissed Reading's motion for judgment n.o.v. As to the City, Superior Court affirmed the trial court's denial of judgment n.o.v., but reversed the denial of a new trial and remanded for that purpose.
On appeal, Reading and the City argued that the Scarboroughs failed to establish a legally cognizable cause of action and that judgment n.o.v. should have been granted. Superior Court in reviewing the record found that the City had failed to present argument in its post-trial brief concerning the source, existence or nature of the duty owed by the City to Edward Scarborough. This finding was based on the fact that the City's post-trial brief addressed only the issue of the existence of a causal connection between Edward's injuries and the City's breach of some unspecified duty. The City's failure to brief the critical duty issue at the close of proceedings, Superior Court concluded, deprived the trial court of both the need and opportunity to address the merits of the City's contention that the Scarboroughs failed to establish a legally cognizable cause of action because, as a matter of law, the City owed no duty to Edward Scarborough. Scarborough v. Lewis, 359 Pa. Super. 57, 62-63, 518 A.2d 563, 566 (1986).
In Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974), we set forth the doctrine of waiver and the underlying policy considerations which are:
First, appellate courts will not be required to expend time and energy reviewing points on which no trial ruling has been made. Second, the trial court may promptly correct the asserted error. With the issue properly presented, the trial court is more likely to reach a satisfactory result, thus obviating the need for appellate review on this issue. Or if a new trial is necessary, it may be granted by the trial court without subjecting both litigants and the courts to the expense and delay inherent in appellate review. Third, appellate courts will be free to more expeditiously dispose of the issues properly preserved for appeal. [Footnote omitted]. Finally, the exception ...