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To preserve issues for appeal, points for charge should be filed with prothonotary to insure they’re part of certified record

by Dale G. Larrimore, Esq.

Under Rule 226 of the Pennsylvania Rules of Civil Procedure, attorneys are directed to “hand copies of the requested points for charge to the trial judge and the opposing attorneys before the closing addresses to the jury are begun.” Under a new decision of the Superior Court, copies of Points for Charge must also be made a part of the “certified record” in order to preserve any appellate issues over those suggested jury instructions.  Although there are procedures whereby attorneys can get points for charge added to the certified record by petition, the easiest method is to file your points with the prothonotary when you hand them to the trial judge.

In Bennyhoff v. Pappert, 790 A.2d 313 (Pa. Super. 2002), the plaintiff was riding her bike when she was hit by a truck while going through an intersection. The trial resulted in a verdict in excess of $2 million in favor of plaintiffs. On appeal, defendants contended, inter alia, that it was error for the trial judge to refuse their suggested jury instructions on negligence per se.

The Superior Court affirmed the denial of post-trial motions and the entry of judgment in favor of the plaintiff, holding that the defendants had not properly preserved these issues for appellate review. Appellants cited to pages in the Reproduced Record, which contained their “Proposed Points for Charge.” Among the 70 points for charge, was a proposed charge numbered 52 on negligence per se. However, none of those pages appeared in the “certified record, nor do they contain a docketing stamp or any other indication that they were made part of the certified record.” Even though the trial court’s statement in a charging conference that, “52 is out;” the Superior Court reaffirmed its rule that it may only rely on what appears in the certified record and held that the appellants waived any objections based on the failure of the court to utilize defendants’ proposed points for charge. The Superior Court opinion indicates that the appellant has the obligation “to make sure that the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal.” Since the Rules of Appellate Procedure mandate that “those documents which are not part of the ‘official record’ forwarded to this court are considered to be non-existent, [and since] the defendant waived any argument over rejected points for charge by not insuring that they were properly filed of record.

Dale G. Larrimore, a partner in the Philadelphia firm of Deutsch Larrimore Farnish & Andersson, is a member of PaTLA.

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