J. A03014/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THOMAS WILLIAMS, ADMINISTRATOR OF: IN THE SUPERIOR COURT OF

THE ESTATE OF GARDENIA WILLIAMS, : PENNSYLVANIA

DECEASED, :

:

Appellant :

:

v. :

:

PENN CENTER FOR REHABILITATION :

AND CARE AND HOSPITAL OF THE :

UNIVERSITY OF PENNSYLVANIA AND :

TRUSTEES OF THE UNIVERSITY OF :

PENNSYLVANIA AND MANOR CARE OF :

YEADON, LLC AND MANOR CARE INC. :

D/B/A MANOR CARE HEALTH SERVICES : No. 1167 EDA 2014

Appeal from the Judgment Entered March 19, 2014

In the Court of Common Pleas of Philadelphia County 

Civil Division No(s).: May Term, 2011 No. 3790

BEFORE: GANTMAN, P.J., MUNDY,J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.: FILED MARCH 31, 2016

Appellant, Thomas Williams, Administrator of the Estate of Gardenia 

Williams, appeals from the judgment entered in favor of Appellees, Penn 

Center for Rehabilitation and Care and Hospital of University of 

Pennsylvania, following a jury trial. We affirm.

On June 2, 2011, Appellant filed a Complaint alleging negligence and 

corporate negligence against Appellees, and a claim for breach of an oral 

contract against Appellee Penn Center and Manor Care of Yeadon, LLC and 

Manor Care, Inc., d/b/a Manor Care Health Services (“Manor Care”). In an 
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Amended Complaint filed on July 8, 2011, Appellant added wrongful death 

and survival actions against Manor Care. On February 27, 2012, the trial 

court sustained Manor Care’s Preliminary Objections resulting in the transfer 

of the wrongful death and survival actions against them to arbitration.

After a fourteen-day trial, the jury entered a verdict for Appellees on 

December 12, 2013. Appellant filed a Motion for Post-Trial Relief on 

December 18, 2013. The next day, the trial court ordered Appellant to file 

his Post-Trial Brief within thirty days of receipt of the Notes of Testimony, 

but no later than February 2, 2014. The court ordered Appellees to file a 

response by March 3, 2014. 

On January 30, 2014, Appellant, without having obtained the Notes of 

Testimony, filed a Brief in Support of his Motion for Post-Trial Relief, 

asserting 16 claims of error, and attaching over 500 pages of exhibits. On 

February 28, Appellees filed their responses, alerting the trial court of 

Appellant’s failure to obtain and cite to the Notes of Testimony. Appellees 

argued in their briefs that Appellant’s neglect prevented them from being 

able to conduct meaningful substantive review of Appellant’s claims of error. 

The trial court agreed, finding that Appellant had neither obtained the 

Notes of Testimony for significant dates nor cited to them in his Post-Trial 

Brief. Consequently, the trial court dismissed Appellant’s Post-Trial Motion 

on March 14, 2014. The court noted that, “[Appellant] failed to make 

financial arrangements for preparation of the Notes of Testimony.” Trial Ct. 
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Order, 3/14/14, n.1. On March 17, 2014, Appellant filed a Motion for 

Reconsideration, even though Appellant still had not obtained the Notes of 

Testimony. The trial court denied it on April 9, 2014. Meanwhile, on March 

19, 2014, Appellees filed a Praecipe to Enter Judgment on the jury’s verdict 

pursuant to Pa.R.C.P. 227.4(2).

On April 9, 2014, Appellant filed a timely Notice of Appeal. Both 

Appellant and the trial court complied with Pa.R.A.P. 1925. On October 6, 

2014, the trial court ordered Appellant to file an addendum to his Rule 

1925(b) Statement with page citations to the trial record demonstrating 

where in the record the alleged errors had been raised and ruled upon. 

Appellant complied with this order on November 17, 2014.

Appellant raises the following issues on appeal:

Whether the trial court erred as a matter of law, abused its 

discretion, and committed reversible error in dismissing 

Appellant’s post-trial [motion] for failure to obtain notes of 

testimony?

Whether the trial court erred as a matter of law, abused its 

discretion, and committed reversible error in excluding 

Appellant’s claims of corporate negligence per se against 

Appellees and entered [sic] a non-suit?

Whether the trial court erred, abused its discretion, and 

committed reversible error in prohibiting Appellant from 

the use [sic] applicable laws, regulations, and rules at 

trial?

Whether the trial court [ ] erred in permitting novel 

scientific evidence offered by Appellees in contravention of 

Frye v. United States, [293 F. 1013 (D.C. Cir. 1923)], 

and in contravention of Pa.R.E. 702, 703, and 705?
J. A03014/16

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Appellant’s Brief at 6.

In his first issue, Appellant argues that the trial court erred as a matter 

of law in dismissing his Post-Trial Motion for failure to obtain and cite to the 

Notes of Testimony. Appellant claims that he timely ordered transcription of 

the Notes of Testimony, but never received a request for deposit or payment 

from the court reporters. Id. at 16. Appellant also claims that the trial 

court’s order did not actually require him to “‘secure’ the Notes of Testimony 

on or before February 2, 2013, or by any date, but to file the [b]rief by 

February 2, 2013, with or without the transcript.” Id. at 15. 

We review the trial court’s enforcement of a local procedural rule for 

an abuse of discretion. Guttman v. Rissinger, 482 A.2d 1324, 1324 (Pa. 

Super. 1984).

Philadelphia County Local Rule of Civil Procedure 227(d)(2) provides 

that the court reporter shall deliver a copy of the notes of testimony to any 

party who has requested and paid for them. 

The trial court’s order directing Appellant to obtain the Notes of 

Testimony reads, in relevant part, that, “[Appellant’s] Brief in Support of the 

Post Trial Motion must be filed within thirty (30) days of receipt of the Notes 

of Testimony, but no later than February 2, 201[4].” Trial Ct. Order, 

12/19/2013.

Although the record is clear that Appellant ordered the Notes of 

Testimony on December 13 and December 18, 2013, there is no evidence in 
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the record substantiating Appellant’s claim that he paid the court reporter to 

obtain them. In fact, the trial court specifically found that “[Appellant] failed 

to make financial arrangements for preparation of the [n]otes of 

[t]estimony.” Trial Ct. Order, 3/14/14, n.1. 

In Roski v. Halfway House, Inc., 579 A.2d 392 (1990), this Court 

affirmed the trial court's dismissal of defendant's post-trial motion, under a 

former version of Phila.Civ.R. 227 because there was no evidence that the 

defendant’s counsel ever made a deposit on the transcript. The Superior 

Court concluded, therefore, that the defendant failed to “order” the 

transcript and to exercise “due diligence” in having the transcript prepared. 

Id. at 394. 

In this case, notwithstanding that Appellant requested the Notes of 

Testimony, Appellant did not pay for the Notes of Testimony. Therefore, 

Appellant did not exercise “due diligence” to ensure prompt receipt of the 

Notes of Testimony. See id. This neglect prevented both Appellees and the 

trial court from being able to conduct meaningful and timely substantive 

review of the Appellant’s claims of error.1 Accordingly, the trial court did not 

abuse its discretion in dismissing Appellant’s Post-Trial Motion.

 

1 This Court also observes that Appellant could have filed a Motion for 

Extension of Time to obtain the Notes of Testimony if Appellant needed 

additional time to obtain the funds to pay for the Notes of Testimony to 

comply with the court’s December 19, 2013 Order. Alternatively, if 

Appellant was, in fact, confused by the language of the court’s Order, he 

could have filed a Motion for Clarification. Appellant chose to do neither, 
J. A03014/16

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Appellant’s remaining issues challenge the trial court’s decision to 

enter a non-suit on Appellant’s corporate negligence claim and the court’s 

ruling on evidentiary issues. Appellant raised those issues in his Post-Trial 

Motion and in his Rule 1925(b) Statement. Notwithstanding, we find those 

issues waived.

When a party fails to comply with the rules governing Post-Trial Motion 

practice, the trial court may refuse to address the issues raised therein, and 

this Court has held that those issues are not preserved for appeal. See 

Kennel v. Thomas, 804 A.2d 667, 668 (Pa. Super. 2002). Similarly, we 

hold that when a party fails to comply with an order to obtain the Notes of 

Testimony, and as a result of the party’s own non-compliance the trial court 

is unable to address the issues raised in the Post-Trial Motion, those issues 

are waived. 

In this case, the trial court properly dismissed Appellant’s Post-Trial 

Motion as a result of Appellant’s failure to exercise due diligence to pay for 

the Notes of Testimony. Since the Appellant failed to pay for the Notes of 

Testimony, he could not obtain them and the trial court could not address 

the merits of the issues Appellant raised in his Post-trial Motion. See Roski,

579 A.2d at 394. Therefore, those issues are waived. See id.; see also 

Diamond REO Truck Co. v. Mid-Pacific Indus., Inc., 806 A.2d 423 (Pa. 

 

resulting in an incomplete Post-Trial Motion on which the trial court could not 

properly rule. 
J. A03014/16

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Super. 2002) (issues 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).

Judgment affirmed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/31/2016