Who Should Appeal if Both Sides Are Dissatisfied?

It is not unusual for both sides at trial to feel they lost on key issues. Under Rule 903 of Pennsylvania’s appellate rules, a notice of appeal is due 30 days after the final order. If one side files, the other side may file a cross-appeal within 14 days after the first notice. Strategy in such cases is important where a notice can be filed electronically a minute before midnight. You don’t want to miss filing an appeal, so don’t wait until the last minute; file the notice; it always can be withdrawn if the other side hasn’t filed. Whether or not you are the first to file, your notice may help you negotiate a resolution, and if the case goes forward your cross-appeal will allow you to show that there were two sides to the story in the trial court.

 How do I draft the Rule 1925 Statement?

Once the Notice of Appeal is filed in almost every case, you will receive an order directing you to file a Rule 1925(b) statement of errors complained of on appeal. The Rule 1925(b) statement is a critical step in preserving issues for appeal.  If not properly prepared, potential claims will be irretrievably lost/waived. Often the first thing an appellate court will do is to check the Rule 1926 Statement to see if an issue was waived, and Rule 1925 has been a favorite waiver trap. Be careful to follow the specific directions in the trial court order––consistent with Rule 1925 you have will have 21 days to prepare, file and serve your statement.

Rule 1925 originally was adopted to ensure that the trial court would write “at least a brief opinion” where the reasons for the order appealed from do not already appear of record. Remember this objective. Your 1925(b) statement should be written to accurately identify and preserve the best appellate issues in your case (the errors by the trial court) and to prompt the trial court to explain its reasoning on each ruling that culminated in the final order. Once you receive the trial court’s 1925(a) opinion, you will be in a better position to evaluate the issues most likely to get traction with the appellate court.

What Rule 1925 Waiver should I worry about?

Pennsylvania courts have found all appellate issues waived where the Rule 1925(b) statement was not filed and served timely on opposing party and the trial judge. Timely service on the trial court is critical. Importantly, under Rule 1925(b)(1), service on the trial judge can be by hand delivery or as provided in Pa.R.A.P. 121(a)––which allows service by U.S. mail if you obtain a United States Postal Service Form 3817, Certificate of Mailing––but be careful to read the rules and follow the steps. In one case the Superior Court found waiver where the appellant couldn’t find the senior judge, whose chambers were temporary.

Waiver has been found where the Statement was so vague, repetitive or lengthy that it was perceived as inhibiting rather than assisting the trial judge in writing the Rule 1925(a) opinion. See, e.g., Lineberger v. Wyeth, 894 A.2d 141,148-49 (Pa. Super. 2006); Kanter v. Epstein, 866 A. 2d 394, 400-03 (pa. Super. 2004), allowance of appeal denied, 584 Pa. 678, 880 A.2d 1239 (2005), cert. denied sub nom., Spector Gadon & Rosen, P.C. v. Kanter, 546 U.S. 1092 (2006). Your purpose is not to confuse, but to clarify the rulings at trial, so that you are better prepared to proceed on appeal.

Rule 1925 was amended in 2007, to mitigate waiver traps. Nonetheless there are a number of possible missteps you can make in attempting to comply with Rule 1925, which serve to illustrate the perils of proceeding blindly on appeal. Make certain to carefully follow the rules for timing and service.

As you move down the funnel from post trial motion to Rule 1925 Statement to your appellate brief, it is important to enlist a colleague who may be able to give you important perspective on the issues in your case that are most likely to resonate with the appellate judges. Use your statement as a tool along the way; your distillation of issues, and the trial court’s opinion addressing them, will assist you ultimately in recognizing the 3-5 best issues for your appellate brief.

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In preparation for trial and during trial lawyers understandably become wrapped up in the view from the trenches: the procedures, the evidence, the witnesses, and the trial court’s rulings. In any case with multiple unique or thorny legal issues it is important to keep one eye on the post trial horizon, and the potential need for appellate review.  The Rule 1925 statement of errors is a critical step. It can help you winnow down potential issues. But if you don’t carefully follow the rules you can lose the appeal before you’ve even started. The last thing any trial attorney wants to hear is that an issue that otherwise might have traction, was unwittingly waived.

This is the final article in a three part series.

This article was also published in the CCBA New Matter publication.

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James (Jim) C. Sargent is a Partner and Co-Chairman of Lamb McErlane’s Appellate Advocacy Group and Litigation Department.  Jim represents small businesses, as well as major national and multinational manufacturers in litigation and appeals.  His practice includes commercial contracts, real estate and banking law, construction litigation, municipal law, restrictive covenants, employment contracts, as well as condemnation matters. Jim also offers mediation services in commercial/construction/business ownership disputes. jsargent@lambmcerlane.com. 610-701-4417.