Defense Digest

What You Don't Know Can Hurt Your Client And You

Two recent opinions of the Superior Court of Pennsylvania highlight the importance of strict compliance with the Pennsylvania Rules of Appellate Procedure. Among the numerous and arcane facets of appellate advocacy, the failure to comply with an apparently innocuous rule may be fatal to an appeal filed by an advocate unused to appellate litigation. The opinions also exemplify a trend among the appellate courts, both state and federal, to require strict compliance with the court rules. The Pennsylvania Superior Courts opinions in Jones v. Jones , 878 A.2d 86 (Pa.Super. 2005), and Forest Highlands Community Association v. Hammer, 879 A.2d 223 (Pa. Super. 2005), illustrate the need for strict compliance with the Rules.

Both cases involved violations of Rule 1925(b), as well as numerous other rules. Rule 1925 (b) requires an appellant to file a statement of matters complained of within fourteen days after ordered to do so by the trial court, with service on the trial court. The effect of the statement is to place the trial judge on notice of appellate issues, and the judge can then write an opinion explaining his or her resolution of the issues.

In Jones, a hotly contested divorce proceeding, the wife, or the appellant, violated a host of appellate procedures to the point of abusing the process of the Superior Court and waiving any chance of a meaningful appeal. Jones is a virtual primer on what not to do in appellate advocacy. Indeed, the appellant committed a minimum of a dozen procedural violations or omissions. Among them were failures to follow form requirements, as well as substantive deficiencies in neutral recitation of the history of the case, and the concise, intelligible presentation of arguments for review. Contrary to several Rules, the appellant filed a seven-page, twenty-nine issue 1925(b) statement, which, according to the Superior Court, rendered it impossible for the trial court to issue an opinion addressing the matters complained of. So numerous were the issues articulated it would be impossible to comply with the one-page limit of Rule 2116(a), Statement of Questions involved, let alone articulate the essence of the issues. The appellant also violated numerous briefing rules. For example, Rule 2111(a)(d) requires certain elements, articulated in a specific order, to be included in the brief. Here, the appellant failed in these requirements and even failed to file required exhibits. While Rules 2117 and 2119 require fair and neutral summaries of the parties contentions, the appellant's recitation was imbalanced and argumentative. Rule 2119(a) requires an orderly, seriatim presentation of each argument, but the appellant muddled two issues in one section in such a way that the Superior Court could not discern or resolve either. Throughout the brief, the appellant failed to cite relevant case authority to support her arguments. The court found that the appellant's conduct of the appeal was so deficient as to warrant waiver of all issues, automatic affirmance of the trial court's decision, and remand for imposition of attorney's fees. While to some these failures may seem picayune or technical, Rule 2101 mandates conformance to the Rules. Failure to do so will result in a quashed or dismissed appeal.

In Forest Highlands, the trial court directed the filing of a 1925(b) statement within the required fourteen days, but the appellant filed the Statement only with the Prothonotary on the fifteenth day, one day late. The trial court later held that the appellant failed to timely file the statement in violation of Rule 1925(b) because she failed to serve the court with a copy. In contrast to general federal practice, this Rule requires direct service on the trial judge; merely filing a copy with the Prothonotary is insufficient. Filing only, the Superior Court reasoned, places a burden on the trial judge to engage in "self-help" by manually searching the Prothonotary's records or "surfing" the Internet for linkage to the court's records, a burden not contemplated by Rule 1925(b). Through the appellant's failure to follow the black letter requirements of the Rule, she waived all issues, meritorious or not, that could be presented on appeal.

The Superior Court's opinions in these cases are dramatic, but hardly novel. Even seasoned trial counsel, let alone the incompetent, can trip on the nuances and anomalies of appellate procedure and jurisprudence. In Jones and Forest Highlands, failures to adhere to the letter of an apparently innocuous rule prevented presentation of any issues. The Rule 1925(b) requirements represent only one appellate rule that if ignored can undermine a case. When filing an appeal, especially for the first time or in a new jurisdiction, counsel is wise to become thoroughly acquainted with rules, procedures, scope of review and other matters that arise only in appeals and post-trial practice. An appellate team with substantial experience in trial, post-trial, and appellate litigation can offer help in drafting briefs or, at a minimum, counsel on how to proceed. Marshall Dennehey's appellate team has more than one hundred years combined experience. We are ready to assist seasoned trial counsel in all appellate matters.

*Doug is a shareholder in the firm's Philadelphia, PA office. He can be reached at (215) 575-2773 or dsisk@mdwcg.com.