Tecce, T. v. Hally, J. ( 2014 )


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  • J-A25021-14
    
    2014 Pa. Super. 262
    TANYA HELENA TECCE,                        : IN THE SUPERIOR COURT OF
    :      PENNSYLVANIA
    Appellant              :
    :
    v.                             :
    :
    JOHN MICHAEL HALLY,                        :
    :
    Appellee               : No. 495 EDA 2014
    Appeal from the Order entered January 14, 2014,
    Court of Common Pleas, Delaware County,
    Civil Division at No. 2008-008805
    BEFORE: DONOHUE, WECHT and PLATT*, JJ.
    CONCURRING OPINION BY DONOHUE, J.:               FILED NOVEMBER 21, 2014
    I agree with the learned Majority’s determination that Wife waived the
    issue she presents on appeal. I write separately because I do not share the
    Majority’s distaste for that result.   The law is eminently clear that we are
    required to find waiver both because Wife failed to preserve the issue in the
    trial court and because she has filed a grossly deficient appellate brief.
    The Supreme Court of Pennsylvania has discussed the vital importance
    of issue preservation as follows:
    Issue preservation is foundational to proper
    appellate review. Our rules of appellate procedure
    mandate that ‘[i]ssues not raised in the lower court
    are waived and cannot be raised for the first time on
    appeal.’ Pa.R.A.P. 302(a). By requiring that an issue
    be considered waived if raised for the first time on
    appeal, our courts ensure that the trial court that
    initially hears a dispute has had an opportunity to
    consider the issue. Lincoln Philadelphia Realty
    Assoc. v. Bd. or Revision of Taxes of
    *Retired Senior Judge assigned to the Superior Court.
    J-A25021-14
    Philadelphia, [] 
    758 A.2d 1178
    , 1186 ([Pa.] 2000).
    This jurisprudential mandate is also grounded upon
    the principle that a trial court, like an administrative
    agency, must be given the opportunity to correct its
    errors as early as possible. Wing v. Com.
    Unemployment Comp. Bd. of Review, [] 
    436 A.2d 179
    , 181 ([Pa.] 1981). Related thereto, we have
    explained in detail the importance of this
    preservation requirement as it advances the orderly
    and efficient use of our judicial resources. See
    generally Dilliplaine v. Lehigh Valley Trust Co.,
    [] 
    322 A.2d 114
    , 116–17 ([Pa.] 1974). Finally,
    concepts of fairness and expense to the parties are
    implicated as well.
    In re F.C. III, 
    2 A.3d 1201
    , 1211-12 (Pa. 2010).
    It is axiomatic that “[i]n order to preserve an issue for appellate
    review, a party must make a timely and specific objection at the appropriate
    stage of the proceedings before the trial court. Failure to timely object to a
    basic and fundamental error will result in waiver of that issue.” Thompson
    v. Thompson, 
    963 A.2d 474
    , 475-76 (Pa. Super. 2008); see also Mazlo v.
    Kaufman, 
    793 A.2d 968
    , 969 (Pa. Super. 2002). “On appeal the Superior
    Court will not consider a claim which was not called to the trial court’s
    attention at a time when any error committed could have been corrected.”
    
    Thompson, 963 A.2d at 476
    (emphasis added). As noted in the passage
    above, Rule of Appellate Procedure 302, “Requisites for Reviewable Issue,”
    provides that “[i]ssues not raised in the lower court are waived and cannot
    be raised for the first time on appeal.”    Pa.R.A.P. 302(a).    Moreover, the
    Rules of Appellate Procedure provide that an appellant must indicate in both
    the statement of the case and argument portions of his or her brief where
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    the issue was raised or preserved in the court below.       Pa.R.A.P. 2117(c);
    Pa.R.A.P. 2119(e). The law and our Rules could not be more clear: Mother
    failed to preserve her issues in the trial court, and so this Court is precluded
    from considering them.
    Secondly, Wife’s appellate brief contains precisely zero citation to
    relevant authority. Rule of Appellate Procedure 2119(a) provides as follows:
    The argument shall be divided into as many parts as
    there are questions to be argued; and shall have at
    the head of each part--in distinctive type or in type
    distinctively displayed--the particular point treated
    therein, followed by such discussion and citation
    of authorities as are deemed pertinent.
    Pa.R.A.P. 2119(a) (emphasis added). The failure to provide discussion
    of and citation to relevant authority is a substantial impediment to our
    review; for that reason, it results in waiver of the issue.        Giant Food
    Stores, L.L.C. v. THF Silver Spring Dev., L.P., 
    959 A.2d 438
    , 444 (Pa.
    Super. 2008) (“The Rules of Appellate Procedure state unequivocally that
    each question an appellant raises is to be supported by discussion and
    analysis of pertinent authority. … Failure to do so constitutes waiver of the
    claim.”); see also Coulter v. Ramsden, 
    94 A.3d 1080
    , 1089 (Pa. Super.
    2014) (finding appellant’s issue waived due to lack of “any meaningful
    discussion of relevant legal authority”).
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    Wife cites only one “authority”: an unpublished memorandum decision
    from this Court.1 The Majority correctly points out that our Rules prohibit its
    citation and the memorandum has no precedential value. See Maj. Mem. at
    4 n.2. Thus, Wife’s complete and utter failure to provide citation to relevant
    authority is another basis for this Court to find that Wife has waived the
    issues presented for review.
    Before eventually properly applying the principles of issue preservation
    and waiver, the Majority dissects the lax procedure employed by the trial
    court; specifically, its failure to swear witnesses and allow the parties the
    opportunity for cross-examination. I do not dispute that witnesses are to be
    sworn before testifying.   Section 5901 of the Judicial Code provides that
    “[e]very witness, before giving any testimony shall take an oath in the usual
    or common form[.]” 42 Pa.C.S.A. § 5901(a).2 However, I do not agree with
    the Majority’s broad conclusion that the failure to administer an oath
    necessarily renders testimony a “nullity.” Maj. Op. at 5.
    In this regard, the Majority quotes Commonwealth ex. rel. Freeman
    v. Superintendent of State Corr. Inst. at Camp Hill, 
    242 A.2d 903
    (Pa.
    Super. 1968), for the proposition that the taking of testimony is meaningless
    1
    Wife’s counsel on appeal was not her trial counsel. Wife’s counsel on
    appeal was counsel to one of the parties on appeal in the unpublished
    memorandum decision upon which she relies in the case before us.
    2
    Pennsylvania Rule of Evidence 603 mirrors this requirement, providing
    that “[b]efore testifying, a witness must give an oath or affirmation to testify
    truthfully. It must be in a form designed to impress that duty on the
    witness’s conscience.” Pa.R.E. 603.
    -4-
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    without the administration of an oath.       Maj. Mem. at 4-5.       Freeman,
    however, dealt specifically with the effects of the United States Supreme
    Court decision of In re Gault, 
    387 U.S. 1
    (1967), a landmark case that “set
    forth several procedural requirements which must be met in juvenile
    proceedings” and altered the informal manner in which juvenile delinquency
    proceedings had been routinely held in Pennsylvania.        In that case, this
    Court held that in the wake of Gault, “a determination of delinquency …
    cannot be sustained in the absence of [s]worn testimony subjected to the
    opportunity to cross-examination” where such requisites were not previously
    required.   
    Freeman, 242 A.2d at 908
    .       It is clear that the quasi-criminal
    nature of the delinquency proceedings spurred these changes to those
    informal proceedings, and that the discussion regarding the impact of
    routinely accepting unsworn testimony was made specifically in connection
    with these considerations. See 
    id. at 907-08.
    There is scant case law discussing the failure to swear a witness.3
    However, this Court has considered waiver in connection with the failure to
    object when no oath is administered prior to testimony taken by deposition.
    3
    In addition to the Freeman case cited by the Majority, in Dunsmore v.
    Dunsmore, 
    455 A.2d 723
    (Pa. Super. 1983), this Court remanded a case
    “with instructions to start over again” because of various procedural errors,
    including the trial court’s decision to allow the father in that case to testify
    without being sworn because he was a practicing attorney. Unlike in the
    present case, however, there is absolutely no indication that the appellant-
    mother in Dunsmore failed to lodge a proper objection at the time of the
    hearing, and so Dunsmore provides no guidance on the issue of whether a
    party may waive the failure to swear a witness as an issue for appeal.
    -5-
    J-A25021-14
    As with judicial proceedings, the witness in a deposition must be sworn prior
    to giving testimony. Id.; Pa.R.C.P. 4017(a). This Court has held that the
    lack of objection to a witness’s failure to be sworn at the time of a deposition
    results in the waiver of this error.4      Wenham Transp., Inc. v. Radio
    Const. Co., 
    154 A.2d 301
    , 303 (Pa. Super. 1959). Indeed, the Rules of Civil
    Procedure    governing   discovery   now    mandate   this   result:   objections
    regarding the administration of the judicial oath are waived if not raised at
    the time of the deposition. Pa.R.C.P. 4016(c). There is, to me, no reasoned
    differentiation in this context between deposition testimony and testimony
    offered at a hearing. If the objection to the error is raised at the deposition,
    it can be corrected; if it is raised at the hearing, the error can be corrected.
    In either context, the failure to object prevents the opportunity to correct
    the error.
    I disagree, too, with the Majority’s broad statement that a judicial
    proceeding must involve the presentation of evidence.          Maj. Mem. at 6
    (“When we speak of a judicial proceeding, we speak of a hearing, not a
    conversation.”). There are myriad judicial proceedings that do not require
    the taking of testimony or reception of evidence; for instance, proceedings
    to resolve preliminary objections, motions for judgment on the pleadings,
    and motions for summary judgment.          See Pa.R.C.P. 1028, 1034, 1035.2.
    4
    The unsworn deposition testimony was offered for use at trial. The
    purpose for which the deposition testimony was offered is not clear from the
    Wenham opinion.
    -6-
    J-A25021-14
    Moreover, even in a proceeding where evidence is received, by testimony or
    otherwise, a party may always waive his or her right to present evidence or
    cross-examine witnesses; indeed, a party may choose to do so for tactical
    reasons.   As these facets of a judicial proceeding may be waived, they
    cannot be, as the Majority contends, indispensable for a valid judicial
    proceeding.
    It is of little wonder that no objection was made to the trial court’s
    failure to administer the oath.   The transcript of the hearing leads to the
    inevitable conclusion that the parties were satisfied with the manner in
    which the trial court proceeded.      The Majority correctly describes what
    occurred in the proceeding in question as argument by the parties’ counsel
    interspersed with statements by the parties themselves.      After addressing
    the issues raised by Wife in her petition, the trial court said, “All right, I
    believe I understand the parties’ positions on all three issues, so I thank you
    and I will take this under advisement … .” N.T., 1/9/14, at 46. At no time
    did either party’s counsel inquire of the trial court when testimony would be
    taken or seek to cross-examine the adverse party as to any statement he or
    she made during the course of the proceeding.          Of importance, Wife’s
    counsel voiced no concern that the proceeding was adjourned without the
    formal introduction or reception of evidence. The obvious conclusion is that
    the parties had no problem with the manner in which the proceedings
    occurred or that the presiding judge would decide the case on the
    -7-
    J-A25021-14
    information presented.     It is only now, after receiving an unfavorable
    decision, that Wife takes issue with the manner in which the proceedings
    were conducted and seeks an impermissible second bite at the apple. 5
    Simply, this Court is prohibited from addressing an issue not raised
    and preserved in the trial court. There should be no hesitance by our Court
    to recognize that prohibition and abide by it. I wholeheartedly agree with
    the Majority that family law attorneys and the courts before whom they
    appear should abide by formal rules and procedure.         See Maj. Mem. at 6
    n.3. And so must we. As an intermediate appellate court, we are required
    by rule or Supreme Court edict to find waiver in a myriad of circumstances.
    I am struck by the injustice I perceive as a result of the mandatory
    application   of   mandatory   waiver   principles   in   many   circumstances.
    However, I do not share the Majority’s distaste for finding waiver in this
    case. Both parties were represented by counsel. No objections were lodged
    in the trial court.    While it is troubling that trained lawyers and an
    experienced trial judge would allow the hearing to proceed as it did, waiver
    is the only possible outcome in this case.
    For these reasons, I concur in the outcome reached by the Majority.
    5
    In a footnote, the Majority chides the lax practice of family law attorneys
    and courts and encourages them to adopt formality in their practice by
    abiding by the Rules of Civil Procedure. Maj. Mem. at 6 n.3. I agree that to
    the extent some counsel and trial courts are lax, the legal profession,
    litigants, and the judicial system require adherence to the rules of procedure
    and evidence to preserve confidence in the outcome of cases. Trial courts
    should be diligent and trial counsel should insist, by objection to laxity, that
    the appropriate procedures are followed.
    -8-