Pennsylvania Supreme Court: 'Scattershot Prolixity' Not Necessarily Grounds for Waiver Under RAP 1925(b):
In Eiser v. Brown & Williamson Tobacco Corp., -- A.2d --, 2007 WL 4570915, *1 (Pa. 2007), the Supreme Court of Pennsylvania weighs in on the self-described “maelstrom” in recent years surrounding the propriety of waiver under RAP 1925(b) for failure of an appellant to file a “concise statement of errors.” [1] Despite the plain requirement under Rule1925(b) that Appellant set forth only those rulings or errors that she intends to challenge, Eiser holds that the number of issues raised in the RAP 1925(b) statement shall not alone serve as the basis for waiver. Rather, waiver is appropriate only where the court finds unequivocally that the Appellant has breached its obligation of good faith to the court by deliberately attempting to circumvent the meaning and purpose of RAP 1925(b).
Eiser was a complex action brought by the estate of a life-long smoker and lung cancer victim, directed principally against the manufacturer of the deceased’s preferred brand of cigarettes. The trial court entered judgment on a jury verdict for defendants, and plaintiff appealed. In response to the trial court’s request for a Rule 1925(b) statement, appellant submitted a fifteen-page document listing at least twenty-four (24) separate issues. Relying on the recent Superior Court decision in Kanter v. Epstein, 866 A.2d 394 (Pa. Super. 2004)[2], the trial court found that Appellant had raised so many issues on appeal that he should be deemed to have waived all issues for failure to adhere to the meaning or purpose of RAP 1925(b). Ultimately, the appellant only included eight issues in his Statement of Questions Involved for the Superior Court. The Superior Court ruled on two of these eight issues, but quashed the remaining six on the basis that the record was insufficient because the appellant’s prolix 1925(b) statement had frustrated effective review by the trial court.
In a decision likely to disappoint some trial judges, a plurality of the Supreme Court reversed, holding that, absent a finding of bad faith, the mere quantity of issues raised in the RAP 1925(b) Statement of Matters Complained of on Appeal may no longer be used as a basis for finding waiver. Rather, lower courts must address, on the merits, all issues raised in good faith by the Appellant. Accordingly, the Supreme Court remanded to the Superior Court to review the remaining six issues included in the Appellant’s Statement of Questions Involved, and, if necessary, to remand to the trial court for a more detailed analysis of the specified issues.
[1] Although Eiser involved application of the version of RAP 1925 in existence prior to the revisions of July 25, 2007, the Court clarifies that its decision is nevertheless unaffected by the recent rule change because it is consistent with both pre- and post-revision Rule 1925. The Court explains that both current and former RAP 1925 require concision, and both current RAP 1925 and the Eiser decision provide that the “the number of issues raised in the Rule 1925(b) statement cannot by itself provide a basis for finding waiver.” Id., at *1, n. 5.
[2] In Kanter, a client referral resulted in collection of $1.3 million in fees by counsel to whom a case was referred. Referring counsel thereafter sued on a breach of contract theory for its $431,000 referral fee, ultimately prevailing with an award of $431,000 to reflect its fee, $645,000 in punitives, as well as additional awards for sanctions and delays. The referral attorney and his new firm appealed, together noting some 104 issues in their 1925(b) statements. Both the trial and Superior Courts found that appellants’ duty of dealing in good faith with the court had been breached, and the Superior Court quashed the appeals.
The Court’s decision in Eiser may resolve some confusion regarding application of RAP 1925(b), but the lack of unity in the decision strongly suggests that disputes in this area will continue. [1] Indeed, Justices Eakin and Castille each filed strongly-worded dissents, with the former observing that the Court’s decision itself frustrates the purpose of RAP 1925(b). According to Justice Eakin, rather than furthering the identification and winnowing of issues on appeal, the Court’s decision simply condones so much unrestrained “scattershot prolixity” in RAP 1925(b) statements. Justice Castille further notes that, given an appellate court’s lack of fact-finding capacity, the adoption of a “good faith” standard is problematic. According to Justice Castille, the plurality decision would: (1) permit the filing of prolix statements as of right, without leave or explanation; (2) absolve appellants of any duty to seek to modify Rule 1925(b) pleadings or to take any remedial action once faced with a suggestion of waiver; and (3) require the appellate court to entertain each claim listed, so long as it is also pursued in appellate briefing, even when not addressed by the trial court.
[1] Only two Justices (Baer and Fitzgerald) joined Justice Baldwin’s opinion for the court, while (former) Chief Justice Cappy and Justice Saylor each concurred only in the result, with Justice Saylor filing a one-paragraph opinion simply citing his general opposition to the strict waiver approach.
