The Legal Intelligencer

Authors: James M. Beck

Aside from the rare legal all-star, in position to pick and choose cases, the rest of us inevitably have to confront losing. After all, it has been said that only lawyers who are not trusted with hard cases never lose. Losing at trial often means having to take appeals, and that means dealing with preservation of issues and with Pennsylvania Rule of Appellate Procedure 1925.

At this point, if not before, it is a good idea to bring an appellate specialist, or at least a colleague not personally involved in the case, on board. Particularly in long, complex trials, competent trial counsel will have preserved a large number of instances where the court has done, or allowed opposing counsel to do, things that seem both prejudicial and erroneous. With trial counsel's legal and emotional investment the unsuccessful courtroom venture, trial counsel may be unwilling—or, for strategic reasons, unable—to let go of numerous unfavorable rulings and contested issues.

A fresh set of eyes can be essential to cutting back such a trial-level thicket to the three or four best issues for appeal. A party appealing a plethora of issues runs a severe risk of having them all discounted. The appellate courts of Pennsylvania have repeatedly warned practitioners, as the court did in Kenis v. Perini, 452 Pa. Super. 634, 639 n.3, 682 A.2d 845, 847 n.3 (1996):

"When ... an appellant's brief contains 10 or 12 points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness."

Rule 1925, which obligates trial judges to prepare opinions addressing issues raised on appeal, provides that an appellant's "statement of issues complained of on appeal" should be "concise." The drafters of Rule 1925 were serious about conciseness, reiterating this requirement in 1925(b)(4), when they said that "the statement shall concisely identify each ruling or error that the appellant intends to challenge."

Concise, however, does not mean devoid of all substantive content. It is not enough in a Rule 1925 statement to state only that "the court erred" in doing something, without at least articulating which of the various points counsel may have argue is being pursued.

The appellant filed that sort of statement in Lineberger v. Wyeth, 894 A.2d 141, 149 (Pa. Super. 2006), and was rewarded with a waiver finding. The court held the point was "so vague the trial court suggested appellant had failed to preserve any issue for appellate review ... [and] we agree." Rule 1925, in short, requires counsel both to do their homework and still be concise.

However, for the reasons touched upon above, the opposite problem of overpreservation is more common and has generated more comment from the bench. Rule 1925(b)(4) was itself amended in 2007 to provide: "The statement should not be redundant or provide lengthy explanations as to any error. Where nonredundant, nonfrivolous issues are set forth in an appropriately concise manner, the number of errors raised will not alone be grounds for finding waiver."

This amendment was undertaken in large part to overturn court decisions that punished the inclusion of too many issues under Rule 1925 with waiver of all issues. The amendment occurred in tandem with the Supreme Court's disapprobation of that same precedent in Eiser v. Brown & Williamson Tobacco, 595 Pa. 366, 938 A.2d 417 (2007). In Eiser, the plaintiffs in a weeks-long cigarette products liability trial preserved 24 issues in a 15-page Rule 1925 statement. Both the trial court and the Superior Court held that this extensive preservation was simply too long and enforced blanket waiver findings. The Supreme Court reversed. "Complicated" cases, the court observed, can "involve multiple issues worthy of arguing on appeal."

It was error, particularly in a complex case, to impose blanket waiver solely due to the number of issues raised under Rule 1925. "Litigants who come to the courts of this commonwealth, and attorneys who practice before these courts, must be able to preserve issues for appeal and move forward with the appellate process without fear of waiver," the court held in Eiser. The court therefore "encouraged lower courts to recognize" that a "party may, in good faith, believe that a large number of issues are worthy of pursuing on appeal," even though that can be poor appellate practice. "Given the timeframe in which [counsel] had to file his Rule 1925(b) statement and the number of rulings made both before and during trial, it seems eminently reasonable, and certainly not outrageous, that counsel included a large number of issues."

The court in Eiser expressly limited prior authority allowing blanket waiver to simple cases—specifically Kanter v. Epstein, 866 A.2d 394 (Pa. Super. 2004)—and rejected the appellees' allegations of bad faith. Instead, the court followed the opposite presumption—"that an attorney licensed to practice law in this commonwealth, who acts as an officer of the court system, has acted in good faith upon signing a document filed with the court."

While it is almost always preferable appellate advocacy to cull the number of issues on appeal as soon as possible, the rules provide no sanction for a party that selects which issues to appeal only after observing how the trial court dealt with them in its Rule 1925 opinion.

As the court held in Eiser:

"The decision to raise these issues within the mandates of the Rules of Appellate Procedure is one entrusted to counsel. To be sure, counsel could have elected to focus on the few issues he decided were most likely to result in reversal as a matter of strategy. Other attorneys may have more judiciously narrowed the issues ... [but] it was reasonable for appellants' attorney to err on the side of caution. Although a shorter Rule 1925(b) statement may have proved more effective, counsel's decision not to file one did not, itself, provide a basis to find waiver."

Ultimately, the warnings from appellate courts mentioned above about the questionable wisdom of raising numerous appellate issues appear to have prevailed in Eiser. The case was remanded and on the subsequent appeal on the merits the jury's verdict was affirmed in an unpublished memorandum opinion in Eiser v. Brown & Williamson Tobacco, 11 A.3d 1023 (Pa. Super. 2010). So while numerous issues may be raised consistently with Rule 1925, that remains a bad idea.

For years it appeared that waiver as punishment for raising too many appellate issues under Rule 1925 was a dead letter in Pennsylvania. Since Eiser, only one appellate decision has allowed a blanket waiver finding—against a pro se litigant who filed a Rule 1925 statement that was not only "lengthy," but also an "incoherent, confusing, redundant, defamatory rant," in Jiricko v. Geico Insurance, 947 A.2d 206, 213 (Pa. Super. 2008). With pro se litigants, a court may ultimately have no choice.

However, the history of waiver of appellate issues under Rule 1925 bears repeating as a result of the relatively recent decision in Maya v. Benefit Risk Management, 2012 Phila. Ct. Com. Pl. Lexis 449 (Pa. C.P. Philadelphia Co. Dec. 31, 2012).

Maya appears to be as complicated a case as the Pennsylvania Supreme Court confronted in Eiser. It was also a products liability case. Maya involved serious injuries from Stevens-Johnson syndrome and toxic epidermal necrolysis—the same condition recently involved in the landmark U.S. Supreme Court decision in Mutual Pharmaceutical v. Bartlett, 133 S. Ct. 2466 (2013).

Like Eiser, the litigation in Maya had continued for years. It involved, among other things, issues of first impression in Pennsylvania concerning products liability litigation involving over-the-counter drugs. The trial alone produced "46 days of testimony," according to the opinion, and resulted in a multimillion-dollar verdict.

Despite a paucity of appellate authority after Eiser allowing the sort of blanket waiver sanction disapproved in that case, the court in Maya took the blanket waiver approach, urging that a represented defendant in a major piece of litigation should be punished with such waiver for preserving too many issues. While Eiser held that an appellant's preservation of 24 issues in a 15-page Rule 1925 statement was permissible in a large case, Maya imposed waiver where the would-be appellant's statement was "11 pages outlining 23 numbered paragraphs/issues." Even allowing for "sub-issues," it is not readily apparent that any bounds of legalistic propriety were transgressed in Maya. Perhaps there was more going on in Maya than meets the eye, but if there were, it would have been helpful for the opinion at least to distinguish Eiser on some basis. Somewhat surprisingly, the court's ruling in Maya that the appeal be quashed on waiver grounds does not come to grips with, or even mention, the otherwise controlling Eiser precedent. In complex cases, the rule cannot be that the sheer number of errors effectively insulates the court allegedly making them from review.

An alternative to blanket waiver does exist for a court bedeviled by what it views as an improper and onerous Rule 1925 statement. Instead of waiver, the proper remedy under Rule 1925 for a statement of appellate issues that a trial court finds improper and unworkable as the basis for an opinion is to order the party to file an amended statement. This alternative was recognized by the Pennsylvania Supreme Court in Tucker v. R.M. Tours, 602 Pa. 147, 153-54, 977 A.2d 1170, 1174 (2009), as the correct course for a court to follow in dealing with a "nonconcise" statement under Rule 1925:

"The trial court's sua sponte order directing appellants to file a second Rule 1925(b) statement was merely enforcing its initial Rule 1925 order. ... When confronted with a nonconcise Rule 1925(b) statement, a trial court has the discretion to sua sponte direct an appellant to file a second [such] statement."

As Maya and Eiser both demonstrate, the stakes can be very high in appellate practice. In such situations, counsel may well be tempted to preserve more error points than could ever actually be adjudicated on appeal. Should that occur, the more prudent course for both the court and counsel is to follow the Tucker alternative and order the filing of a more manageable Rule 1925 statement.

Reprinted with permission from the February 11, 2014 issue of The Legal Intelligencer. © 2014 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

To read the full article, please visit: