Friday, February 22, 2008

state appellate procedure - Rule 1925(b) - statement of errors complained of - waiver - quantity of issues

Eiser v. Brown & Williamson Tobacco Corp. - Pa. Supreme Court - December 28, 2007

plurality (3)
concurring (2)
dissent -Castille
dissent - Eakin

Pa. R.A. P. 1925(b) requires an appellant to file and serve on the trial judge a "concise statement of the errors complained of on appeal," where the judge "desires clarification of the errors complained of" and enters an order directing the appellant to prepare such a statement.

As the plurality noted, this rule has been discussed in a "myriad [of] recent decisions...which reach varying conclusions.....[T]here is much consternation in the courts of this Commonwealth related to where lies the outer limit of the number of issues" an appellant may raise under this rule." The process under Rule 1925(b) "has turned into a maelstrom in recent years....."

This case does little to "clarify and quell the consternation," especially given the questionable precedential value of plurality opinions. Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454; 866 A.2d 270, 275 n. 2 (Pa. 2005).

In this case, the appellants filed a 15-page statement containing 24 separately-numbered issues, some of which contained sub-issues. The trial court wrote an 85-page opinion in the case, which had a "complicated and voluminous record" and in which four judges had issued rulings. The trial and Superior Courts held that appellants had waived their right to appellate review as to 6 of 8 issues they had raised and not voluntarily abandoned on appeal.

Plurality opinion - no per se rule - presumption of good faith
The plurality "instruct[ed] lower courts to address, on the merits, all issues raised in good faith....This standard provides, where necessary, a familiar tool to assess the basis for the issues raised." The plurality also stated that "the number of issues raised in the Rule 1925(b) statement cannot by itself provide a basis for finding waiver....In sum, 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....There is a 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." The court "encourage[d] lower courts to recognize that on rare occasions a party may, in good faith, believe that a large number of issues are worthy of pursuing on appeal." (emphasis added)

Saylor, J., concurring - The justice noted his disagreement with a "strict waiver approach" and opposition to any expansion of that doctrine. He thought that the trial and intermediate appellate courts "had reasonable alternatives short of the drastic sanction of outright dismissal to address the apparent lack of conciseness in the statement."

Castille, J., dissenting - The dissenting justice noted that the trial and Superior Court orders were issue-specific and had held that 2 of the 8 matters complained of were "susceptible of meaningful review.....In short, appellants were afforded appellate review, but that review was restricted." The justice criticized the Court's finding of appellants' good faith, noting that it was "not a court of record with fact-finding capacity or function." He said that the lower court decisions were the "natural result of appellants' own Rule 1925(b) conduct," that "appellants took no action to protect their interests," and that the plurality overlooked appellants' lapses. He thought that the result of the plurality opinion would be "the filing of prolix statements as of right, without leave or explanation" and was a solution that would "reward...litigants who primarily have themselves to blame for their dilemmas."

Eakin, J., dissenting - The justice felt that the 1925(b) statement impeded rather than aided the trial judge in writing an opinion. "There comes a point when too much is simply too much."