Navigating The 1925(b) Minefield Of Waiver, DD, 6/08

Defense Digest

Pennsylvania - Appeals

Navigating The 1925(b) Minefield Of Waiver - The Pennsylvania Supreme Court's Attempt To 'Clarify The Confusion And Quell The Consternation'
By Kimberly A. Boyer-Cohen, Esq.*

The myriad decisions of the intermediate appellate courts and trial courts regarding waiver under Rule 1925(b) have been characterized as causing "much consternation in the courts of this commonwealth." Unfortunately, the recent decision of the Pennsylvania Supreme Court in Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417 (Pa. 2007), does little to clarify the confusion.

The simple language of Pennsylvania Rule of Appellate Procedure 1925(b) requires an appellant to file a concise statement of the matters complained of on appeal upon order of the trial court. However, application of Rule 1925(b) by the courts in this commonwealth have caused litigants to face waiver on vagueness grounds under the Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) line of cases, and for raising too many issues following the decision in Kanter v. Epstein, 866 A.2d 394 (Pa. Super. 2004), alloc. denied, 880 A.2d 1239 (Pa. 2005). Such conflicting requirements have resulted in rendering those required to file Rule 1925(b) statements unsure of how to proceed to preserve issues for appellate review without fear of waiver. The Pennsylvania Supreme Court granted allocatur in Eiser intending to "quell the consternation related to waiver under Rule 1925(b) and the number of issues raised."

In Eiser, the appellants raised in excess of 30 issues and sub-issues in their fifteen-page Rule 1925(b) statement. Relying primarily on Kanter, the trial court and Superior Court found all but two issues raised in the appellants' 1925(b) statement to be waived due solely to the number of issues raised. The appellants argued that the decision below should be reversed because it relied on the Kanter decision, which has "cast a cloud of uncertainty over appellate practice."

The Pennsylvania Supreme Court, noting that it had yet to address Kanter, began by reviewing the Kanter decision. Kanter involved a simple breach of contract action involving a referral fee dispute between attorneys. The defendants appealed and raised 104 issues in their 1925(b) statements. The trial court determined that the defendants had breached their duty of dealing in good faith with the court. The Superior Court agreed, finding that the "only motive underlying such conduct is to overwhelm the court system to such an extent that the courts are forced to throw up their proverbial hands in frustration." As a result, the Superior Court quashed the appeals.

The plurality in Eiser distinguished Kanter and found it inapposite on the basis that Eiser involved complex issues, a lengthy trial, and a large number of trial court rulings. After concluding that Kanter should not have been applied, the plurality opinion announced a "rule" instructing the lower courts to address, on the merits, all issues raised in good faith. The good faith inquiry pronounced by the court does not require a finding of fact, per se, but instead "requires that lower courts undertake consideration of whether the circumstance of the lawsuit at issue suggests there is a lack of good faith involved."

In sum, the Eiser Court found that "the number of issues raised in a Rule 1925(b) statement does not, without more, provide a basis upon which to deny appellate review where an appeal otherwise complies with the mandates of appellate practice." This holding is consistent with the 2007 revisions to Rule 1925(b) which specifically make clear that waiver cannot be found based solely on the number of issues raised in a 1925(b) statement.

However, contrary to its intent, Eiser does not clarify the uncertainty faced when drafting a 1925(b) statement. Not only does the plurality opinion not articulate a bright line rule, but two of the justices involved in the opinion and one who concurred in the result have left the court. Because Eiser did not overrule Kanter, it is unclear what the Pennsylvania Supreme Court would decide if the issue was again before it. Furthermore, although the revisions to Rule 1925 indicate the number of issues raised cannot alone be a basis for finding waiver, the revisions do not provide guidance on how to comply with the concise-yet-sufficiently-detailed requirement and avoid waiver.

In the meantime, counsel preparing 1925(b) statements would be well-advised to raise only non-redundant, non-frivolous issues with an eye toward facilitating the trial court's ability to prepare an opinion addressing the issues the appellants actually wish to raise on appeal. Counsel should also keep in mind that the briefing requirements set forth in the Pennsylvania Rules of Appellate Procedure limit the number of issues that may be pursued on appeal, absent leave of court, and the 1925(b) statement should reflect this reality.

*Kimberly is an associate in the Philadelphia, Pennsylvania, office. She can be reached at (215) 575-2707 or kaboyer@mdwcg.com.