Howard J. Bashman
Howard J. Bashman ()

Upon Further Review

The Supreme Court of Pennsylvania’s Appellate Court Procedural Rules Committee has been keeping busy recently, proposing two significant changes to the state rules of appellate procedure that are currently at the notice-and-comment stage of the rulemaking process. The rule changes address two aspects of Pennsylvania appellate practice that this monthly ­appellate column has regularly discussed in the past.

The first rule change, which is in the second round of the notice-and-comment process, would eliminate waiver where a party’s deficient (Pa. R. App. P. 1925(b)) statement of errors complained of on ­appeal does not “interfere with or effectively ­preclude” appellate review.

In Pennsylvania state court practice, ­frequently trial courts do not issue opinions in support of orders—even orders that terminate a case—unless and until the orders are appealed from. In such cases, once an appeal is filed, Pa. R. App. P. 1925(a) requires the trial court to issue “at least a brief opinion of the reasons for the order” or a specification in writing of the place in the record where such reasons already exist.

To ensure that the trial court’s post-appeal opinion addresses the actual subject(s) of the appeal, Rule 1925(b) allows the trial judge to issue an order directing the party taking the appeal to file a concise ­statement setting forth the errors to be raised on ­appeal. The current version of Rule 1925(b) provides that ­issues not included in the statement of errors complained of on appeal will be deemed waived on appeal.

The newly proposed amendment to Rule 1925(b) will eliminate that seemingly harsh and inflexible waiver rule and replace it with the following language: “In all appeals, a deficiency in a statement will not result in a waiver unless the deficiency interferes with or effectively precludes ­appellate review.”

Although the newly proposed rule is ­certainly an improvement over the current version of Rule 1925(b), the language I have quoted above seems to leave some issues unresolved. The first question that arises is whether “a deficiency in a statement” would apply to the situation where the party taking an appeal has failed to file any Rule 1925(b) statement after being ordered to do so. In other words, will a nonexistent Rule 1925(b) statement be considered “a deficiency in a statement.”

As currently drafted, the proposed amendment would only seem to apply where the appealing party has filed a Rule 1925(b) statement of errors complained of. Nevertheless, even in cases where the appealing party has been ordered to file, but has failed to file, a Rule 1925(b) statement, either the trial court’s opinion or the record on appeal may contain an adequate explanation of the basis for the trial court’s ruling(s) being challenged on appeal. Whether the amendment’s more forgiving approach will also apply even when the appellant fails to file a Rule 1925(b) statement as directed should be explicitly addressed.

My second concern is that the proposed rule’s language that “a deficiency in a statement will not result in a waiver unless the deficiency interferes with or effectively precludes appellate review” is unusual in that the categories of “interferes with or effectively precludes” make for an odd combination. In any case in which a deficiency in a Rule 1925(b) statement “effectively precludes” appellate review, the deficiency would necessarily also “interfere with” appellate review. One of the two tests is far more forgiving than the other, and the less forgiving standard—”interfere with”—necessarily would seem to include all instances swept up by the more forgiving standard—”effectively precludes.” The committee should pick one standard or the other, and my hope is that the more ­forgiving “effectively precludes” standard ends up being the only one reflected in the final version of the rule.

Another important change to the Rule 1925(b) process that the amended rule would bring about is a procedure whereby, in cases where the trial transcripts are necessary for preparing the statement but are not yet available, the appealing party will have an ability to ask the trial court to delay the due date for the statement until 21 days after the transcripts are filed in the trial court.

The deadline for comments on the ­proposed amendments to Pa. R. App. P. 1925 is Jan. 20, and comments should be submitted via email at the address you will find at the web page of the Pennsylvania Appellate Court Procedural Rules Committee.

The second important rule amendment now under consideration for the Pennsylvania Rules of Appellate Procedure would expressly allow citation to the unpublished decisions of the Pennsylvania Superior Court for their persuasive value. This would be accomplished by means of amendments to Pa. R. App. P. 126, titled “Citations of Authorities.”

With regard to Superior Court ­unpublished opinions, the rule is intended to have prospective effect only, meaning that advocates will only be authorized to cite to unpublished Superior Court decisions that have issued either after the ­effective date of the rule amendment or some other specified date shortly thereafter. In this regard, the amendment is modeled on Federal Rule of Appellate Procedure 32.1, which had a Dec. 1, 2006, effective date but allowed citation to unpublished federal appellate court rulings issued on or after Jan. 1, 2007.

The 10-plus years of experience under Fed. R. App. P. 32.1 of being allowed to cite to the unpublished opinions of federal appellate courts for their persuasive value demonstrates that there is absolutely no downside to being able to cite to ­unpublished opinions, and thus it is regrettable that the proposed amendment to Pa. R. App. P. 126 would only have ­prospective effect with regard to Superior Court unpublished decisions. This is ­because many unpublished Superior Court decisions currently exist that it would be useful to be able to cite for their persuasive value.

On the other hand, if the amendment remains prospective-only in effect, after the rule change occurs, as time passes, the desirability of citing to older nonprecedential rulings tends to disappear, and thus 10 years later advocates will likely be ­indifferent concerning whether the rule change originally was prospective-only or not.

The deadline for submitting comments on the proposed amendment that will allow parties to cite to the unpublished opinions of the Pennsylvania Superior Court is Feb. 9. Once again, comments should be submitted via email at the address you will find at the web page of the Pennsylvania Appellate Court Procedural Rules Committee.

I congratulate the Appellate Court Procedural Rules Committee on having proposed these two very sensible and important amendments. Although both amendments perhaps could and might yet be further improved, even in their current forms both amendments are worthwhile and should be adopted.