By Mandi L. Scott
Special to the Legal
Pennsylvania Rule of Appellate Procedure 1925(b) has caused problems for numerous appellants over the years. The most common problems relate to service of the Statement of Errors Complained of on Appeal and waiver of issues on appeal due to defective statements.
If a trial court judge wants a statement to be filed, an order will be entered directing the appellant to do so. Appellants are typically given 21 days for the filing and service of the statement. In order to properly file and serve the statement, the appellant must not only timely file the statement of record with the trial court, but also serve it on the trial judge and all parties. Service is considered complete upon mailing only if the appellant obtains a U.S. Postal Service Form 3817, certificate of mailing, or other similar form from which the date of deposit can be verified.
An appellant's statement must concisely identify each ruling or error that the appellant intends to challenge, with sufficient detail to identify all pertinent issues for the judge. In 2007, Rule 1925(b) was amended to help attorneys and parties comply with the requirement that Statements be concise yet sufficiently detailed to avoid waiver under Linebarger v. Wyeth or Kanter v. Epstein.
According to Rule 1925(b)(4)(iv), the "Statement should not be redundant or provide lengthy explanations as to any error. Where non-redundant, non-frivolous issues are set forth in an appropriately concise manner, the number of errors raised will not alone be ground for finding waiver."
More general statements are permitted in civil cases where the appellant cannot readily discern the basis for the judge's decision. In such cases, the appellant must preface the statement with an explanation why the errors complained of on appeal are only stated in general terms. In such cases, the generality of the statement will not be grounds for finding waiver.
Given the 2007 amendments, I was curious to see what, if any, waiver cases have issued since the amendments became effective. Appellants continue to file defective statements, resulting in waiver of issues on appeal. However, if the trial court can discern any issues within a defective statement, those issues are being addressed in the trial court's opinion, as in In re Appeal of Moyer. There, the trial court received vague statements that lacked specificity and were of little help in the court’s attempt to identify the appellants’ specific contentions of error. Despite this, the court went on to address those issues that it could clearly discern from the statements.
Similarly, in Balliet v. Shivone, the appellant filed a nine-page statement containing five pages of factual averments and a five-page brief, with no numbered paragraphs or specific statements summarizing issues for appeal. Despite this clear violation of the requirements of Rule 1925(b)(4), the trial court ascertained three issues it believed the appellant was raising on appeal and addressed those issues in its opinion.
In contrast to these cases, where an apparent good faith effort was made to comply with Rule 1925(b), in Dorazio v. Equip. Corp. of Am., the trial court recommended that an appeal be dismissed in its entirety because the appellant failed to comply with either the letter or the spirit of Rule 1925(b), and he did so in bad faith. The statement filed was 39 pages, with 130 paragraphs and 125 pages of exhibits, even though the trial only took less then four days. According to the trial court, the statement was rambling, incoherent and redundant and would not comply with Pa. R.A.P. 2116.
While this last case presents an extreme example of a blatant disregard for Rule 1925(b), attorneys and pro se parties drafting Rule 1925(b) statements of errors complained of on appeal should continue to pay close attention to concisely yet specifically identifying their errors on appeal in order to avoid any possible waiver determination.
Mandi L. Scott is an associate with the Pittsburgh-based law firm of Goehring Rutter & Boehm, where she has been practicing since 2004. Currently, her practice focuses on appellate issues and municipal law. To contact her, e-mail email@example.com.