James M. Beck
James M. Beck ()

Pennsylvania appellate practitioners should know about a number of things that have occurred since my last article. Two are rules changes. The third is a most unusual footnote in an en banc Pennsylvania Superior Court decision.

Unpublished Superior Court Opinions To Become Citable

Not quite 18 months ago, I devoted an entire article to Pennsylvania Superior Court’s IOP Section 65.37, which declares that court’s memorandum opinions totally uncitable. I offered my opinion that IOP Section 65.37 could implicate the Pennsylvania Constitution’s open courts clause. In December 2016, however, the Appellate Court Procedural Rules Committee proposed an amendment to Pa. R.A.P. 126 that would supersede IOP Section 65.37. This newly proposed rule would make all unpublished appellate decisions in Pennsylvania—from both the Superior and Commonwealth courts—”citable” for whatever “persuasive value that the court chooses to attribute to it.”

The committee offered five justifications for this proposal: nonprecedential, memorandum decisions have some value; judges are qualified to decide for themselves how much weight, if any, to give nonprecedential decisions; with memorandum opinions routinely available online, it makes sense to make them citable; citability is important enough to be addressed by formal rule; and a uniform standard should govern citability.

The proposal would expand Pa. R.A.P. 126 to four paragraphs. Cited memorandum opinions would have to be identified as such and attached as an “appendix” (not an exhibit) to the brief. Only Superior Court memorandum opinions decided after the effective date of the new rule would be citable, along with Commonwealth Court memoranda issued after Oct. 1, 2013 (carrying forward current Commonwealth Court practice). This provision of the proposed rule could be further amended, as several comments (including this author’s appellate group) favor some degree of retroactivity, provided that currently pending appeals are not affected. Single-judge Commonwealth Court opinions would also become citable—currently they are not (Commw. Ct. I.O.P. Section 414(a) (allowing citation only of “panel” decisions))—with a special rule for election law matters reflecting that court’s current practice. Proposed Pa. R.A.P. 126(c). Finally, the usual citability of unpublished opinions with respect to “law of the case and related doctrines” is retained.

The Appellate Rules Committee deserves plaudits for this initiative. Both citability and uniformity are much to be desired. Burying citability standards in obscure court internal operating procedures has been a trap for the unwary. I only wish that the committee had pursued this last point one step further, and also created a uniform rule for seeking publication of memorandum decisions. Currently the internal operating procedures of the Superior and Commonwealth courts vary greatly, with the Superior Court setting a 14-day deadline for a motion to publish, and allowing only parties or the trial court to so move, whereas the Commonwealth Court is significantly more generous, allowing “any person” to move for publication within 30 days of a memorandum decision being filed.

Revisions to Rule 1925

Another appellate rule slated for overhaul is Pa. R.A.P. 1925, governing grounds for appeal. Generally, Rule 1925 grants trial judges the power to require from appellants “statements” of the grounds to be asserted in pending appeals. Rule 1925 has been fraught with controversy, as parties are subject to mandatory waiver should they fail to state their grounds timely, or with as much clarity as trial courts may believe necessary. Since trial judges have every incentive to find waiver, Rule 1925 has also been controversial.

The latest revisions to Rule 1925 mostly address waiver. The most common source of waiver is the “bright-line waiver rule” applicable to all grounds when a Rule 1925 statement is tardily filed. Except in criminal cases, amended Rule 1925(b)(4) would eliminate automatic waiver unless a statement is so late, or so inadequate, that it “interferes with or effectively precludes appellate review.” (See Proposed Pa. R.A.P. 1925(b)(4)(vii).) In cases of lateness, vagueness or omissions, waiver would be permissive only, subject to the new interfere/preclude review standard, and determined on a “case-by-case” basis.

Another source of waiver occurs when Rule 1925′s deadlines fall before the necessary transcript is available. Unavailable transcripts necessitate either multiple extensions or amending Rule 1925 statements, neither of which is explicitly allowed by the current rule. The 2016 amendments address this problem in two ways. First, a related rule, Pa. R.A.P. 1922, would be amended to include: a strict 14-day deadline for court reporter completion of transcripts after a Rule 1925 transcript request, and mandatory docketing of all transcripts upon delivery. Second, Rule 1925(b) clarifies procedure in unavailable-transcript situations, with a new subsection (Rule 1925(b)(2)(ii)) expressly authorizing “an extension of the deadline to file the statement until 21 days following the date of entry on the docket of the transcript.” Thus, would-be appellants would no longer have to guess what to do.

A third source of unintended waiver under current Rule 1925 is the requirement for filing and service upon the trial judge. Direct service on the trial judge would be abolished in almost all cases (except fast-track orphan’s court matters), with filing of record considered sufficient.

A couple of other miscellaneous changes to Rule 1925 are also proposed, the most significant being a 60-day deadline to replace the current directive that trial judges file their opinions “forthwith.” Rule 1922 would be amended to include a procedure for correcting transcript errors. The trial court’s authority to require record citations in Rule 1925 statements would be eliminated. Finally, the Official Note to Rule 1925(b)(4) would be rewritten to provide that “neither the number of issues raised nor the length of the statement alone is enough to find that a Statement is vague or nonconcise enough to constitute waiver.”

Possible Exception to Nonexistence of Matters Outside the Record

The third note in this article is literally a note. A recent en banc Superior Court decision, Nicolaou v. Martin, ___ A.3d ___, 2016 No. 1286 (Pa. Super. Dec. 22, 2016), has a footnote seeming to allow appellate consideration of materials outside of the record, if “contained” in the parties’ reproduced record and “there was no dispute as to their contents.”

For support, Nicolaou cited Commonwealth v. Barnett, 121 A.3d 534 (Pa. Super. 2015), a decision that, after criticizing shoddy work by the Philadelphia clerk of courts, stated, as to certain omitted items, “the reproduced record contains the relevant transcripts and there is no dispute as to their contents. We therefore considered them.” Barnett cited another criminal decision, Commonwealth v. Brown, 52 A.3d 1139 (Pa. 2012), with a similar footnote, that, since “the accuracy of the reproduction has not been disputed … , we may consider it.” Brown, in turn, cited Commonwealth v. Killen, where unobjected-to nonrecord materials from a reproduced record were used “for the limited purpose of describing the evidence” after their inclusion was “noted with disapproval.”

Some appellate courts, after hopscotching from one footnote to the next, appear to be on the brink of punching a hole in a fundamental maxim of appellate practice, extant for decades, that “for purposes of appellate review, what is not of record does not exist,” as in Commonwealth v. Holley, 945 A.2d 241, 246 (Pa. Super. 2008). (See also, e.g., Commonwealth v. Powell, 956 A.2d 406, 423 (Pa. 2008) (“an appellate court is limited to considering only those facts that have been duly certified in the record on appeal”) (citation and quotation marks omitted); and McCaffrey v. Pittsburgh Athletic Association, 293 A.2d 51, 57 (Pa. 1972), (“it is black letter law that an appellate court cannot consider anything which is not a part of the record in the case”).) As another precedent cited in Barnett, supra held:

“The fundamental tool for appellate review is the official record of what occurred at trial. Only the facts that appear in this record may be considered by a court. … It is a black letter law that an appellate court cannot consider anything which is not a part of the record in the case,” as in Commonwealth v. Young, 317 A.2d 258, 264 (Pa. 1974).

Nicolaou did not ultimately cross this line. The court ultimately drew back from actually relying on nonrecord material, stating that “due to the procedural posture,” it “utilized only those [materials] that are in the certified record.”

Nonetheless, Nicolaou represents the first time that this questionable practice, occasionally used by appellate courts in criminal matters, has found its way into a published decision on the civil side in Pennsylvania. Practitioners should be aware of this nascent loophole. •

Pennsylvania appellate practitioners should know about a number of things that have occurred since my last article. Two are rules changes. The third is a most unusual footnote in an en banc Pennsylvania Superior Court decision.

Unpublished Superior Court Opinions To Become Citable

Not quite 18 months ago, I devoted an entire article to Pennsylvania Superior Court’s IOP Section 65.37, which declares that court’s memorandum opinions totally uncitable. I offered my opinion that IOP Section 65.37 could implicate the Pennsylvania Constitution’s open courts clause. In December 2016, however, the Appellate Court Procedural Rules Committee proposed an amendment to Pa. R.A.P. 126 that would supersede IOP Section 65.37. This newly proposed rule would make all unpublished appellate decisions in Pennsylvania—from both the Superior and Commonwealth courts—”citable” for whatever “persuasive value that the court chooses to attribute to it.”

The committee offered five justifications for this proposal: nonprecedential, memorandum decisions have some value; judges are qualified to decide for themselves how much weight, if any, to give nonprecedential decisions; with memorandum opinions routinely available online, it makes sense to make them citable; citability is important enough to be addressed by formal rule; and a uniform standard should govern citability.

The proposal would expand Pa. R.A.P. 126 to four paragraphs. Cited memorandum opinions would have to be identified as such and attached as an “appendix” (not an exhibit) to the brief. Only Superior Court memorandum opinions decided after the effective date of the new rule would be citable, along with Commonwealth Court memoranda issued after Oct. 1, 2013 (carrying forward current Commonwealth Court practice). This provision of the proposed rule could be further amended, as several comments (including this author’s appellate group) favor some degree of retroactivity, provided that currently pending appeals are not affected. Single-judge Commonwealth Court opinions would also become citable—currently they are not (Commw. Ct. I.O.P. Section 414(a) (allowing citation only of “panel” decisions))—with a special rule for election law matters reflecting that court’s current practice. Proposed Pa. R.A.P. 126(c). Finally, the usual citability of unpublished opinions with respect to “law of the case and related doctrines” is retained.

The Appellate Rules Committee deserves plaudits for this initiative. Both citability and uniformity are much to be desired. Burying citability standards in obscure court internal operating procedures has been a trap for the unwary. I only wish that the committee had pursued this last point one step further, and also created a uniform rule for seeking publication of memorandum decisions. Currently the internal operating procedures of the Superior and Commonwealth courts vary greatly, with the Superior Court setting a 14-day deadline for a motion to publish, and allowing only parties or the trial court to so move, whereas the Commonwealth Court is significantly more generous, allowing “any person” to move for publication within 30 days of a memorandum decision being filed.

Revisions to Rule 1925

Another appellate rule slated for overhaul is Pa. R.A.P. 1925, governing grounds for appeal. Generally, Rule 1925 grants trial judges the power to require from appellants “statements” of the grounds to be asserted in pending appeals. Rule 1925 has been fraught with controversy, as parties are subject to mandatory waiver should they fail to state their grounds timely, or with as much clarity as trial courts may believe necessary. Since trial judges have every incentive to find waiver, Rule 1925 has also been controversial.

The latest revisions to Rule 1925 mostly address waiver. The most common source of waiver is the “bright-line waiver rule” applicable to all grounds when a Rule 1925 statement is tardily filed. Except in criminal cases, amended Rule 1925(b)(4) would eliminate automatic waiver unless a statement is so late, or so inadequate, that it “interferes with or effectively precludes appellate review.” (See Proposed Pa. R.A.P. 1925(b)(4)(vii).) In cases of lateness, vagueness or omissions, waiver would be permissive only, subject to the new interfere/preclude review standard, and determined on a “case-by-case” basis.

Another source of waiver occurs when Rule 1925′s deadlines fall before the necessary transcript is available. Unavailable transcripts necessitate either multiple extensions or amending Rule 1925 statements, neither of which is explicitly allowed by the current rule. The 2016 amendments address this problem in two ways. First, a related rule, Pa. R.A.P. 1922, would be amended to include: a strict 14-day deadline for court reporter completion of transcripts after a Rule 1925 transcript request, and mandatory docketing of all transcripts upon delivery. Second, Rule 1925(b) clarifies procedure in unavailable-transcript situations, with a new subsection (Rule 1925(b)(2)(ii)) expressly authorizing “an extension of the deadline to file the statement until 21 days following the date of entry on the docket of the transcript.” Thus, would-be appellants would no longer have to guess what to do.

A third source of unintended waiver under current Rule 1925 is the requirement for filing and service upon the trial judge. Direct service on the trial judge would be abolished in almost all cases (except fast-track orphan’s court matters), with filing of record considered sufficient.

A couple of other miscellaneous changes to Rule 1925 are also proposed, the most significant being a 60-day deadline to replace the current directive that trial judges file their opinions “forthwith.” Rule 1922 would be amended to include a procedure for correcting transcript errors. The trial court’s authority to require record citations in Rule 1925 statements would be eliminated. Finally, the Official Note to Rule 1925(b)(4) would be rewritten to provide that “neither the number of issues raised nor the length of the statement alone is enough to find that a Statement is vague or nonconcise enough to constitute waiver.”

Possible Exception to Nonexistence of Matters Outside the Record

The third note in this article is literally a note. A recent en banc Superior Court decision, Nicolaou v. Martin , ___ A.3d ___ , 2016 No. 1286 ( Pa. Super. Dec. 22, 2016 ) , has a footnote seeming to allow appellate consideration of materials outside of the record, if “contained” in the parties’ reproduced record and “there was no dispute as to their contents.”

For support, Nicolaou cited Commonwealth v. Barnett , 121 A.3d 534 ( Pa. Super. 2015 ) , a decision that, after criticizing shoddy work by the Philadelphia clerk of courts, stated, as to certain omitted items, “the reproduced record contains the relevant transcripts and there is no dispute as to their contents. We therefore considered them.” Barnett cited another criminal decision, Commonwealth v. Brown , 52 A.3d 1139 ( Pa. 2012 ) , with a similar footnote, that, since “the accuracy of the reproduction has not been disputed … , we may consider it.” Brown, in turn, cited Commonwealth v. Killen, where unobjected-to nonrecord materials from a reproduced record were used “for the limited purpose of describing the evidence” after their inclusion was “noted with disapproval.”

Some appellate courts, after hopscotching from one footnote to the next, appear to be on the brink of punching a hole in a fundamental maxim of appellate practice, extant for decades, that “for purposes of appellate review, what is not of record does not exist,” as in Commonwealth v. Holley , 945 A.2d 241, 246 ( Pa. Super. 2008 ) . (See also, e.g., Commonwealth v. Powell , 956 A.2d 406, 423 ( Pa. 2008 ) (“an appellate court is limited to considering only those facts that have been duly certified in the record on appeal”) (citation and quotation marks omitted); and McCaffrey v. Pittsburgh Athletic Association , 293 A.2d 51, 57 ( Pa. 1972 ) , (“it is black letter law that an appellate court cannot consider anything which is not a part of the record in the case”).) As another precedent cited in Barnett, supra held:

“The fundamental tool for appellate review is the official record of what occurred at trial. Only the facts that appear in this record may be considered by a court. … It is a black letter law that an appellate court cannot consider anything which is not a part of the record in the case,” as in Commonwealth v. Young , 317 A.2d 258, 264 ( Pa. 1974 ) .

Nicolaou did not ultimately cross this line. The court ultimately drew back from actually relying on nonrecord material, stating that “due to the procedural posture,” it “utilized only those [materials] that are in the certified record.”

Nonetheless, Nicolaou represents the first time that this questionable practice, occasionally used by appellate courts in criminal matters, has found its way into a published decision on the civil side in Pennsylvania. Practitioners should be aware of this nascent loophole. •