PA Law Weekly, 6/3/02

PA Law Weekly, 6/3/02

Allegations of Error

If I Had a Hammer

The waiver doctrine can be end run, but only rarely. So be careful.

By BarbaraS.Magen , Special to the Law Weekly

In law school, we were taught that justice does not always equal fairness. This was a concept that was difficult to swallow for any card-carrying ideologue. Perhaps this is why it is so difficult to accept it when we have fallen short of persuading a judge or jury that our client is in the right.

Who says that, in a court of law, winning isn't everything?

A loss quickly sends the ardent advocate reeling from euphoria to instant despair. It is when you are questioning the very decision which led you to law school that you suddenly begin to regain hope, realizing that your client is entitled to a "second bite of the apple" through the wonders of our appeal process.

While basking in that hopeful glow, however, you also understand that your time in the sun might be short-lived if you have not properly laid the foundation to rectify the injustice which you are certain has been heaped upon your client. It is at this moment that you are left to ponder - with worry - whether you have dodged the bullet commonly known as the waiver doctrine.

In reality, the time to start thinking about the concept of waiver is not when a trial is lost, but instead, when a file is initially opened. With every action (and inaction) taken during the course of litigation, an advocate is either consciously, or automatically, creating the building blocks which form the basis for any appeal.

Hence, one of the great ironies of the appellate process is that the attorney who is best prepared for a loss from the outset, is often the one who has the greatest chance for success at both the post-trial and appellate stages of the lawsuit. By being cognizant on a daily basis of the possibility of defeat, the wary and prudent advocate has a tremendous opportunity to create a strong foundation which might later, by necessity, be used as a launching pad to correct any undeserved wrong which might have occurred.

When contemplating the doctrine of waiver, its very definition should strike a resonant chord in the hearts and minds of sensible individuals. According to Black's Law Dictionary, the equitable principle of waiver is defined as "the intentional or voluntary relinquishment of a known right," a "renunciation, repudiation, abandonment, or surrender of some claim, right, privilege, or of the opportunity to take advantage of some defect, irregularity, or wrong."

Eyes Wide Open

A review of the meaning of waiver raises the question of who among us would race to relinquish any entitlement. Although there are certainly circumstances where strategy might call for attorneys to momentarily set aside their fears of waiving a particular claim or privilege in order to gain a greater good, the magnitude of forfeiting any advantage is such that waiver is normally chosen with eyes wide open.

It is best to heed the warning set forth in Pennsylvania's Rules of Appellate Procedure and corresponding interpretive case law. Rule 302(a) clearly states that those issues "not raised in the lower court are waived and cannot be raised for the first time on appeal."

Likewise, as this commonwealth's Supreme Court emphasized some time ago in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255 (1974), a party, in order to preserve an issue for review, must make a timely, specific objection, at the earliest possible opportunity before the trial court. Issues not properly preserved for review cannot be considered by a post-trial or appellate court, even though the alleged error may be deemed basic or fundamental.

The stringency of Pennsylvania's waiver rule has been described in Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204 (1974), as "indispensable to the orderly functioning of our judicial process and developed out of a sense of fairness to an opposing party and as a means of promoting jurisprudential efficiency by avoiding appellate court determination of issues which the appealing party failed to preserve."

Notwithstanding the seeming inflexibility of the rule, there are certain limited exceptions.

For example, when a fundamental change in the law occurs after a trial court enters an order, but before an appellate court rules, the failure to raise the issue in the lower court will not prohibit appellate review of that question. The state Supreme Court in Cleveland v. Johns-Manville Corp., 547 Pa. 402 (1997) [citing Kuchinic v. McCrory, 422 Pa. 620, (1966)]. Reasoned that it would be unjust to hold a party to a waiver when the waiver is alleged to have occurred at a time when the party had no way of knowing that there existed a right to be surrendered.

Public Interest Exception

Another exemption to the waiver rule - albeit an extremely narrow one - is known as the public interest exception. This limited immunity was addressed by the Supreme Court in Reilly when it was asserted that a waiver could be excused when a strong public interest appeared to outweigh the ordinary need to protect the judicial system from unacceptably preserved issues. Approximately ten years later, in McMillen v. 84 Lumber, 538 Pa. 567 (1994), the Supreme Court revisited the issue and clarified that in order for this exception to apply, an exceedingly strong public interest must be at stake, as in capital cases where human life is involved. This very restricted exception will never be applicable to any case or question which may be considered as routine or commonplace.

An additional exception to the waiver doctrine was first announced in Commonwealth v. Hammer, 508 Pa. 88 (1985), a criminal case where the Supreme Court determined that, in limited circumstances, a party may raise an allegation of judicial misconduct for the first time in a motion for post-trial relief. More recently, in Harman ex rel. Harman v. Borah, 562 Pa. 455 (2000), it was likewise determined that this exception is equally applicable to civil cases.

Although the Hammer exception does not relieve a party from timely requesting a judicial recusal, it does acknowledge that when it is apparent from the circumstances that an objection to judicial misconduct would be without meaning, a party may opt to raise the issue for the first time when filing post-trial motions to preserve the question for appellate review. Such a strategy, however, does not come without great risk. The burden is squarely on the party invoking the Hammer exception to demonstrate that posing a timely objection would have been futile. See, for example, Craley v. Jet Equipment & Tools, Inc., 778 A.2d 701 (Pa. Super. 2001). Therefore, advocates choosing to rely on the principle enunciated in Hammer must proceed with immense caution.

In light of the very confined parameters of the exceptions to the waiver doctrine, it is always best to err on the side of vigilance and to bring mistakes to a trial court's attention, at the earliest juncture, for correction. Only by demonstrating, in a timely and specific manner, that your client has been wronged and caused to suffer unwarranted prejudice will you be assured that your actions are best protecting your client's interests. Although a defeat is undoubtedly disappointing, keeping in mind how sweet that "second bite to the apple" could be should be inspiration enough to make certain that all issues are properly preserved for appeal.

Pg. 1 vol. 5 iss. 22