# Dilliplaine v. Lehigh Valley Trust Co. > Supreme Court of Pennsylvania · July 1, 1974 · 457 Pa. 255 URL: https://www.frixlaw.com/law-library/cases/9751571 ## Case - **Full name:** Dilliplaine, Appellant, v. Lehigh Valley Trust Company - **Court:** Supreme Court of Pennsylvania - **Decided:** July 1, 1974 - **Citations:** 457 Pa. 255; 322 A.2d 114; 1974 Pa. LEXIS 838 - **Precedential status:** Published - **Opinion:** Concurring in part by Pomeroy - **Judges:** Jones, Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino - **Cited by:** 647 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9751571 ## How later opinions describe it (automated extraction) - explaining that the opportunity to correct alleged errors at trial advances the orderly and efficient use of our judicial resources because, inter alia, appellate courts will not be required to expend time and energy reviewing points on which no trial ruling has been made - noting, “[a]ppellate court consideration of issues not raised in the trial court results in the trial becoming merely a dress rehearsal. . . . 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 fai… - noting the policy considerations underlying the contemporaneous objection rule: that timely and specific objections advance judicial economy by allowing a trial court to immediately address errors which are subject to correction before the trial ends ## Opinion text *261 Concurring and Dissenting Opinion by Mr. Justice Pomeroy : 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. 1 The doctrine is not confined to errors in jury instructions but can embrace any trial error which deprives a litigant of Ms fundamental right to a fair and impartial trial. TMs right is an integral part of due process of law, guaranteed to all litigants by the Fifth and Fourteenth Amendments. Obviously it is only an unusual trial error that will amount to a denial of due process, and in my view, the doctrine should be available to remedy only those trial errors so contrary to fundamental fairness as to reach the dimensions of a constitutional violation. See Adoption of R.I., 455 Pa. 29, 34 , 312 A.2d 601, 604 (1973) (concurring opinion of this writer); Commonwealth v. Thompson, 444 Pa. 312, 317 , 281 A.2d 856, 858 (1971) (concurring opinion of this writer, joined by Mr. Justice Eagen and Mr. *262 Justice Barbieri); Commonwealth v. Jennings, 442 Pa. 18 , 274 A.2d 767 (1971); Commonwealth v. Williams, 432 Pa. 557, 563-564 , 248 A.2d 301 (1968); see also Commonwealth v. Hallowell, 444 Pa. 221, 226-227 , 282 A.2d 327 (1971). 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 *263 Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to Onr System of Justice? 42 Ford. L. Rev. 227, 234 (1973) (footnotes omitted). While in Pennsylvania we have what I consider a generally high degree of competence in the trial bar, the fact remains that there has been in recent decades, here as elsewhere, phenomenal change in both substantive and procedural law, accompanied by a tremendous increase in the volume of litigation. 2 As Chief Justice Burger suggests, there is evidence that, at the same time, the quality of trial advocacy in our nation’s courts has been declining. We must strive to reverse this trend, to be sure, but I do not think we should do so at the expense of litigants who are not to blame for their attorneys’ shortcomings. There are other, more direct and less costly ways of raising standards of trial advocacy than discarding the doctrine of basic and fundamental error. 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 *264 on direct appeal from the judgment of sentence. See, e.g., Commonwealth v. Hallowell, supra. 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. Although Federal Buie of Civil Procedure 51 provides that “[n]o party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection”, the federal courts recognize the doctrine of basic and fundamental error as an exception to the rule’s requirements. See King v. Laborers Local 818, 443 F.2d 273 (6th Cir. 1971); Arteiro v. Coca Cola Bottling, Midwest, Inc., 47 F.R.D. 186, 188 (D. Minn. 1969) and cases cited. As to other jurisdictions which recognize the doctrine, see generally 5 Am. Jur. 2d, Appeal and Error, §549. See generally The Courts, the Public, and the Law Explosion (H. W. Jones, ed. 1965). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9751571. Public record. Not legal advice.