R. Walker v. The City of Pittsburgh and Duquesne Electric Light and Power Company

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Renarda Walker :

: No. 1662 C.D. 2015

v. :

: Submitted: March 24, 2016

The City of Pittsburgh and :

Duquesne Electric Light and :

Power Company :

:

Appeal of: City of Pittsburgh :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH FILED: July 29, 2016

The City of Pittsburgh (City) appeals from the August 27, 2015 decision

of the Court of Common Pleas of Allegheny County (trial court), finding the City

liable for injuries sustained by Renarda Walker (Walker) when she tripped over a

divot and fell in Downtown Pittsburgh. We dismiss the appeal because the City did

not file a post-trial motion and, therefore, failed to preserve any issue for appellate

review.

On September 2, 2014, Walker filed a complaint against the City and

Duquesne Electric Light and Power Company (Duquesne Light Company) in the

compulsory arbitration division of the Allegheny County Court of Common Pleas.1

In her complaint, Walker alleged that on September 4, 2012, she was crossing

Chatham Street in Downtown Pittsburgh and stepped into a large divot in the street,

which was located directly off of the curb area and near a manhole. Walker asserted

a negligence claim against the City and Duquesne Light Company and contended that

her claim met the “streets” exception to governmental immunity found in section

8542(b)(6) of what is commonly referred to as the Political Subdivision Tort Claims

Act (Tort Claims Act), 42 Pa.C.S. §8542(b)(6). After a Board of Arbitrators entered

an award in favor of the City and Duquesne Light Company, Walker filed a de novo

appeal to the trial court.

On August 26, 2015, the trial court conducted a non-jury trial. Walker

testified about her fall, the injuries she sustained, the medical treatment she received,

and her out of pocket medical expenditures. Walker also submitted as evidence

photographs of the area where she fell. At the close of Walker’s case-in-chief, the

City and Duquesne Light Company moved for a voluntary non-suit. The trial court

granted Duquesne Light Company’s motion for a non-suit, but denied the City’s

motion.

On August 27, 2015, the trial court issued a decision in favor of Walker

and against the City in the amount of $1,257.00. Following the trial court’s decision,

the City did not file a post-trial motion. Instead, on August 31, 2015, the City filed a

notice of appeal to this Court. Pursuant to the trial court’s September 2, 2015 order,

the City filed a Pa.R.A.P. 1925(b) statement on September 15, 2015, alleging, inter

1

Allegheny County Local Rule 1301(1)(a), a civil action shall first be submitted to and

heard by a Board of Arbitrators where the demand is for $35,000.00 or less (exclusive of interest

and costs).

2

alia, that Walker’s evidence was insufficient to establish that the City had actual or

constructive notice of a dangerous condition under section 8542(b)(6)(1) of the Tort

Claims Act, 42 Pa.C.S. §8542(b)(6)(1).2

In its Pa.R.A.P. 1925(a) opinion, the trial court first concluded that the

City waived all of the issues that it asserted in its 1925(b) statement because the City

did not file a post-trial motion. (Trial court op. at 1.) The trial court also concluded

that Walker submitted sufficient circumstantial evidence establishing that the City

had constructive notice of the dangerous condition, reasoning as follows:

Walker . . . provided proof of notice to the City of the

specific dangerous condition primarily via photographs of it

taken the same day she was injured. The photographs show

that the part of the depression where she tripped is located

within a typical pedestrian crosswalk that is designated by

approximately one foot wide white lines painted on the

street surface. The depression is from an asphalt repair

patch, but one of the white crosswalk lines is painted onto

the depression. Therefore, the City must have been aware

of the depression when it painted the white pedestrian

crosswalk line onto it. With the paint appearing worn, I

find the City had more than adequate time to remedy this

defect that should have been discovered when the City

painted it.

(Trial court op. at 2-3.)

On appeal to this Court, the City raises one issue for review in its

appellate brief: whether the trial court erred in concluding that Walker presented

sufficient evidence to charge the City with constructive notice of a dangerous

condition. The City also contends that it was not required to file a post-trial motion

2

To recover under the streets exception, the plaintiff “must establish that . . . the local

agency had actual notice or could reasonably be charged with notice under the circumstances of the

dangerous condition at a sufficient time prior to the event to have taken measures to protect against

the dangerous condition.” 42 Pa.C.S. §8542(b)(6)(1).

3

and that there was no prejudice to any party as of result of its failure to file a post-trial

motion.

As an initial matter, we determine whether the City waived the one issue

that it raises in its appellate brief. It is now well-settled that this Court may dismiss

an appeal sua sponte based on an appellant’s failure to properly preserve issues for

appellate review. See, e.g., Commonwealth v. Edmondson, 718 A.2d 751, 752 n.7

(Pa. 1998) (“This Court may raise the issue of waiver sua sponte.”); Tucker v. R.M.

Tours, 939 A.2d 343, 346 (Pa. Super. 2007), aff’d, 977 A.2d 1170 (Pa. 2009).

The Pennsylvania Supreme Court has concluded that the filing of a post-

trial motion is mandatory if a litigant wishes to preserve issues for further review.

L.B. Foster Co. v. Lane Enterprises, Inc., 710 A.2d 55 (Pa. 1998) (concluding that

Pa.R.C.P. No. 227.1 “requires parties to file post-trial motions in order to preserve

issues for appeal. If an issue has not been raised in a post-trial motion, it is waived

for appeal purposes.”). See Municipal Authority of Hazle Township v. Lagana, 848

A.2d 1089, 1092-93 (Pa. Cmwlth. 2004). Pursuant to Pennsylvania Rule of Civil

Procedure 227.1(c): “Post-trial motions shall be filed within ten days after (1)

verdict, discharge of the jury because of inability to agree, or nonsuit in the case of a

jury trial; or (2) notice of nonsuit or the filing of the decision in the case of a trial

without jury.” Pa.R.C.P. No. 227.1(c) (emphasis added).

Significantly, a party is required to file a post-trial motion following the

entry of a decision after a bench trial or a non-jury trial. Warfield v. Shermer, 910

A.2d 734, 737 (Pa. Super. 2006) (reiterating that the Superior Court has consistently

dismissed “appeals from orders or verdicts following non-jury trials when no post-

trial motions were filed.”). “Where a party fails to file timely post-trial motions after

4

a bench trial, no issues are preserved for this Court to review.” Liparota v. State

Workmen’s Insurance Fund, 722 A.2d 253, 256 (Pa. Cmwlth. 1999).

Here, the trial court convened a bench trial and issued a decision on

August 27, 2015. The City readily concedes that it did not file a post-trial motion

after the trial court issued its decision, but, instead, filed a Pa.R.A.P. 1925(b)

statement. Although the City raised the issue in its Pa.R.A.P. 1925(b) statement that

it now seeks to argue on appeal, we conclude that this issue is nonetheless waived

because the City failed to file a post-trial motion before the trial court. Diamond Reo

Truck Co. v. Mid-Pacific Industries, 806 A.2d 423, 429 (Pa. Super. 2002) (“The

failure to file post-trial motions cannot be excused or replaced by the filing of a

1925(b) statement. Thus, issues that are waived for failure to file post-trial motions

or for other reasons cannot be revived or saved simply by raising those issues in a

1925(b) statement.”); accord Whitpain Homeowners Association v. Schiller, 811

A.2d 1111, 1114 n.4 (Pa. Cmwlth. 2002).

Contrary to the City’s assertion, the requirement of filing a post-trial

motion is mandatory and the failure to do so results in waiver, regardless of whether

the opposing party suffers prejudice. As the Superior Court explained: “[T]his is not

blind insistence on a mere technicality since post-trial motions serve an important

function in [the] adjudicatory process in that they afford the trial court in the first

instance the opportunity to correct asserted trial error and also clearly and narrowly

frame issues for appellate review.” Diamond Reo Truck Co., 806 A.2d at 428

(citation omitted).

5

Because the City did not file a post-trial motion below, it did not

preserve any issue for our review. Accordingly, we dismiss this appeal.3

________________________________

PATRICIA A. McCULLOUGH, Judge

3

Even if we did not dismiss the appeal, this Court would be reluctant to find that the trial

court, in its capacity as fact-finder and corresponding authority to draw reasonable inferences from

the evidence, erred in finding that the City could be charged with constructive notice. Nonetheless,

we need not decide this issue because it is waived.

6

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Renarda Walker :

: No. 1662 C.D. 2015

v. :

:

The City of Pittsburgh and :

Duquesne Electric Light and :

Power Company :

:

Appeal of: City of Pittsburgh :

ORDER

AND NOW, this 29th day of July, 2016, the City of Pittsburgh’s

appeal from the August 27, 2015 decision of the Court of Common Pleas of

Allegheny County is hereby dismissed.

________________________________

PATRICIA A. McCULLOUGH, Judge