Waiving Goodbye To Your Best Issues On Appeal
By Howard J. Bashman
Monday, June 14, 2004

What issues can a losing party raise on appeal? With very few exceptions, only those issues that the losing party has properly preserved while the case was pending before the trial court. This so-called "raise-or-waive" rule is a central precept of appellate litigation in the United States.

As Judge Bruce M. Selya explained in a precedential opinion that he recently issued on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit, "We have made it transparently clear that the raise-or-waive rule can neither be ignored nor brushed aside as 'a pettifogging technicality or a trap for the indolent.'"

But what does it mean for an issue to be "properly preserved" in the trial court? For one thing, the issue needs to be presented to the trial court for consideration. For another thing, the issue needs to be raised at the appropriate time or times in the trial court.

Assume, for example, that for a plaintiff to recover damages in a suit against a defendant the jury needs to rule in the plaintiff's favor on three separate elements of the cause of action. Assume further that the jury charge erroneously fails to instruct the jury to consider and return a finding on one of those three elements.

If the improperly instructed jury returns an award in favor of the plaintiff, in order to prevail on appeal the defendant will need to establish not only that it advised the trial court at some unspecified time in the proceedings that plaintiff's claim consisted of three separate elements, but also that the defendant objected to the erroneous jury charge when the charge was given to the jury.

The "raise-or-waive" rule serves the important goals of fairness and judicial economy. Giving a trial court the opportunity to correct an error will avoid appellate proceedings if the trial court takes advantage of that opportunity for correction. And even if the trial court does not take advantage of the opportunity, at least the trial court is likely to give its reasons for rejecting the losing party's claim of error. An appellate court almost always benefits from having an explanation of why the trial court ruled as it did.

Also, allowing new issues to be raised on appeal without regard to whether the issues had been presented to the trial court would invariably increase the number of issues that appellate courts are asked to resolve. Although plenty of lawyers correctly realize that the likelihood of success on appeal is inversely proportionate to the number of issues being raised on appeal, the temptation to summon forth new issues to accompany those rejected in the trial court would be too strong for many lawyers to resist.

As commonly understood and applied, the raise-or-waive rule is fair both to the parties and the trial court. Finding an issue waived on appeal is, however, a harsh remedy, and therefore appellate courts should resist the temptation to expand the rules that allow for a finding of waiver beyond their usual boundaries. In particular, the state appellate courts of Pennsylvania have begun to find issues waived on appeal under circumstances where neither logic nor justice would seem to require such a result.

Pennsylvania Rule of Appellate Procedure 1925(b) provides that after a party files a notice of appeal, the trial court "may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal.... A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of."

Rule 1925(b) has a laudable purpose: the rule allows the trial court to determine whether a sufficient explanation of the reasons for the ruling or rulings to be challenged on appeal already exists in the record. If the trial court concludes that additional explanation is merited, the trial court can issue a new opinion in support of the ruling(s) being challenged on appeal.

As written, Rule 1925(b) is unobjectionable. Unfortunately, judicial decisions finding waiver under Rule 1925(b) apply that rule of procedure far more broadly than its plain language dictates. Perhaps the most significant departure from Rule 1925(b)'s plain language came in the Supreme Court of Pennsylvania's ruling in Commonwealth v. Lord (1998). There, Pennsylvania's highest court held, notwithstanding Rule 1925(b)'s plain language that an appellate court "may" find waiver if the rule's requirements are not complied with, that a failure to comply with Rule 1925(b) mandates a finding of waiver.

In the aftermath of the Supreme Court of Pennsylvania's ruling in Lord, a number of cases reached Pennsylvania's intermediate appellate courts in which the appellant failed to file a Rule 1925(b) statement of matters complained of on appeal even though the trial courts had requested one, but the trial courts nevertheless issued a supplemental opinion addressing the issue or issues that the trial courts anticipated were going to be the subject of the appeal. In some of those cases, the trial courts guessed correctly, issuing opinions that addressed the very issues that the appellants later sought to raise on appeal.

Despite the existence of a post-appeal opinion which addressed the very issue that the appealing party thereafter sought to raise before the appellate court, the appellate court nevertheless ruled that the appealing party's failure to file a Rule 1925(b) statement of matters to be raised on appeal waived the appellant's ability to raise even those issues that the trial court adequately addressed in its post-appeal opinion. The reason provided in such cases (see, for example, the Superior Court of Pennsylvania's ruling in Commonwealth v. Lemon (2002)) is that the appealing party is harmed if the trial court instead formulates the issue to be raised on appeal.

I find that claim of "harm" singularly unpersuasive. Does a party sustain greater harm if the issue it wishes to pursue on appeal is deemed waived or if the issue is deemed preserved for appellate consideration because the trial court fortuitously anticipated the issue in drafting its post-appeal opinion? The "harm" that the Superior Court hypothesizes -- forcing a party to be stuck with the issues that the trial court anticipates in its post-trial opinion -- pales in comparison to the harm that the Superior Court's own ruling visits on the appealing party, which is a waiver of all issues that could be raised on appeal.

It is important to note that a trial court would be well within its discretion, where an appellant failed to provide the requested Rule 1925(b) statement of matters complained of on appeal, to simply issue a perfunctory order recommending that all issues be deemed waived on appeal. But where a trial court, in the absence of a party's Rule 1925(b) statement, nevertheless issues an opinion addressing issues that the appealing party thereafter seeks to press on appeal, it makes no sense for the appellate court to hold that the issues which the trial court addressed are waived. Rule 1925(b)'s purpose has been satisfied, and the appellate court has the benefit of the trial court's reasoning.

Pennsylvania appellate courts are also applying Rule 1925(b) too broadly in another significant respect. Instead of treating Rule 1925(b) waiver as an issue that the appellate courts will address if the parties on appeal raise the issue in their briefs, Pennsylvania appellate courts are now independently finding issues waived under Rule 1925(b) even where the parties have neither addressed the point in their briefs nor at oral argument.

Some issues, such as a court's subject matter or appellate jurisdiction, are deemed so important that an appellate court properly may address them in the absence of argument from the parties. Even in those instances, however, an appellate court usually will seek the parties' views on whether jurisdiction exists before ruling that it does not exist. But the question whether an issue on appeal has been properly preserved in a party's Rule 1925(b) statement is not the equivalent of determining whether an appellate court or trial court has jurisdiction over a case.

Nevertheless, in recent months I have seen the Superior Court of Pennsylvania hold, in a case in which the parties in their briefs and at oral argument did nothing other than discuss the merits of the issues on appeal, that the appealing party's Rule 1925(b) statement failed to state with adequate specificity the question raised on appeal, and therefore the question was waived.

In these circumstances, federal appellate courts would typically hold that the party that prevailed in the trial court has waived the issue of the appellant's waiver by failing to raise waiver as an argument in support of affirmance of the judgment on appeal. (To find a sampling of such cases, simply search for the phrase "waived waiver" on Westlaw in the Seventh Circuit database.)

Assuredly, the whopping caseload that Pennsylvania's intermediate appellate courts face makes it quite tempting for those courts to seek out on their own any opportunity to avoid addressing on the merits arguments that parties raise on appeal. Yet the issue of Rule 1925(b) waiver should only be considered if raised by a party on appeal. To begin with, that is how the adversarial system of justice is intended to work. And any other approach would be unfair to the appealing party, which never had an opportunity to address Rule 1925(b) waiver before receiving an appellate court's decision holding that such waiver precludes consideration of the merits on appeal.

For these reasons, Pennsylvania's appellate courts should allow parties to pursue on appeal those issues that a trial court's post-appeal opinion adequately addresses, even in the absence of a Rule 1925(b) statement, and Pennsylvania's appellate courts should not find waiver under Rule 1925(b) in the absence of an argument from the party opposing the appeal that such a waiver has occurred.


This article is reprinted with permission from the June 14, 2004, issue of The Legal Intelligencer 2004 NLP IP Company.

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