OPINION BY MR. JUSTICE ROBERTS, July 1, 1974:
On April 23, 1966, automobiles driven by Wayne F. Dilliplaine and James A. Burdette collided. Subsequently Burdette died of causes unrelated to the accident. Dilliplaine then brought this trespass action against the executor of Burdette's estate, Lehigh Valley Trust Company, for injuries suffered in the accident.
The jury found for defendant and Dilliplaine's motion for a new trial was denied. The Superior Court affirmed.
Appellant Dilliplaine frankly concedes that he neither offered a point for charge nor took specific exception to the due care instruction actually given.
We believe that two practical problems with basic and fundamental error make it an unworkable appellate procedure. Initially, appellate court recognition of alleged errors not called to the trial court's attention has a deleterious effect on the trial and appellate process. Also, despite its repeated articulation, the theory has never developed into a principled test, but has remained essentially a vehicle for reversal when the predilections of a majority of an appellate court are offended.
Appellate court consideration of issues not raised in the trial court results in the trial becoming merely a dress rehearsal. This process removes the professional necessity for trial counsel to be prepared to litigate the case fully at trial and to create a record adequate for appellate review. The ill-prepared advocate's hope is that an appellate court will come to his aid after the fact and afford him relief despite his failure at trial to object to an alleged error. The diligent and prepared trial lawyer — and his client — are penalized when an entire case is retried because an appellate court reverses on the basis of an error opposing counsel failed to call to the trial court's attention. Failure to interpose a timely objection at trial denies the trial court the chance to hear argument on the issue and an opportunity to correct error. It also tends to postpone unnecessarily disposition of other cases not yet tried for the first time. See Pa. R.C.P. 214(d).
Perhaps at an earlier stage of our jurisprudential development this practice could be justified. Today, however, there is no excuse for and appellate courts should not encourage less than alert professional representation at trial. Virtually all active practitioners at our bar have had a formal legal education at a law school accredited by the American Bar Association.
Requiring a timely specific objection to be taken in the trial court will ensure that the trial judge has a chance to correct alleged trial errors. This opportunity to correct alleged errors at trial advances the orderly
The other major weakness of the basic and fundamental error theory is its ad hoc nature. The theory has been formulated in terms of what a particular majority of an appellate court considers basic or fundamental.
Because appellant failed to specifically object to the trial court's instruction on presumption of due care, we will not consider this allegation of error. The order of the Superior Court is affirmed.
Mr. Justice MANDERINO joins the opinion of the Court.
Mr. Justice O'BRIEN concurs in the result.
CONCURRING OPINION BY MR. JUSTICE MANDERINO:
I join in the majority opinion by Mr. Justice ROBERTS holding that the rule of basic and fundamental error is a rule without specific standards and should be abolished. The abolition of the rule, I should like to add, does not leave an aggrieved party without a remedy.
Issues not raised in the trial court because of ineffective assistance of counsel may be reviewable on appeal in a criminal case. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), sets forth specific standards which are applicable in determining whether counsel was effective in a criminal case.
An aggrieved party in a civil case, involving only private litigants unlike a defendant in a criminal case, does not have a constitutional right to the effective assistance of counsel. The remedy in a civil case, in which chosen counsel is negligent, is an action for malpractice.
While I concur in the result reached by the majority in the case before us, I cannot agree that the time has come to discard the doctrine of basic and fundamental error as it applies to erroneous jury instructions. However limited its scope and rare the occasions for its application, I believe the doctrine has a useful role to play in protecting the constitutional rights of litigants in our courts.
The doctrine of basic and fundamental error has been long established in this and other jurisdictions.
I am not persuaded that the doctrine of basic and fundamental error encourages careless or cynical disregard of orderly trial procedure by trial lawyers. The very uncertainty, indeed the unlikelihood, of the doctrine's application argues against any such consequence. Attorneys have everything to gain and nothing to lose from timely objection to errors at trial. We have applied the doctrine so sparingly that surely it is a rare lawyer indeed who would risk a charge of malpractice or incompetence on the speculation that an appellate court will find a particular error to be basic and fundamental.
The majority suggests that, whatever justification may once have existed for the fundamental error concept, it may now be safely discarded in view of the high quality of formal education which most trial attorneys receive today, and the various opportunities for continuing legal education. This complacency is not shared by other observers of the workings of our legal system. As Chief Justice Warren E. BURGER has remarked but recently: "Many judges in general jurisdiction trial courts have stated to me that fewer than 25 percent of the lawyers appearing before them are genuinely qualified; other judges go as high as 75 percent. I draw this from conversations extending over the past twelve to fifteen years at judicial meetings and seminars, with literally hundreds of judges and experienced lawyers. It would be safer to pick a middle ground and accept as a working hypothesis that from one-third to one-half of the lawyers who appear in the serious cases are not really qualified to render fully adequate representation." W.E. Burger, The Special
Nor do I believe that the fundamental error doctrine adds significantly to admittedly overcrowded appellate dockets. It is the nature of humankind to be ever hopeful in the face of the most discouraging odds, and I fear that as long as there are appellate courts there will be litigants pursuing frivolous appeals. This is particularly true in the area of criminal law, where most defendants receive legal representation at no personal cost, and where all state remedies must be exhausted to pave the way for possible relief in the federal courts. A truly egregious criminal trial error which we decline to consider on appeal because not preserved below is almost certain to resurface in a post-conviction proceeding in the form of a charge of ineffectiveness of counsel. Considerations of judicial economy argue in favor of dealing with errors of this sort
Finally, it bears emphasizing that the rule now being discarded has existed not for the benefit of lazy and incompetent lawyers, but for the protection of litigants who may have been denied the essential elements of a fair and impartial trial. The considerations of judicial convenience and efficiency cited by the majority, important as they are, should give way in the rare situation where basic rights of this sort are in the balance. Cf. Niederman v. Brodsky, 436 Pa. 401, 412, 261 A.2d 84 (1970). I believe that, in repudiating the doctrine as it applies to erroneous jury instructions, the majority has taken a step which is both unnecessary and unwise.
Mr. Justice EAGEN joins in this concurring and dissenting opinion.
"A hundred years ago over eighty-five per cent of the lawyers in this country became lawyers by reading law in an office. Today the figure is less than ten per cent and in some of the more populous states practically negligible."
"(A) A lawyer shall not: . . . (2) Handle a legal matter without preparation adequate in the circumstances."
As to other jurisdictions which recognize the doctrine, see generally 5 Am. Jur. 2d, Appeal and Error, § 519.