In Pennsylvania appellate courts, winning or losing a case can often times hinge less on the strength of a legal argument than on whether that argument was properly preserved throughout trial and post-trial proceedings.

Long a defining feature of state court practice, the doctrine of waiver continues to shape litigation strategy and appellate outcomes, especially in the Keystone state, which practitioners say has a reputation for being very stringent when it comes to waiver.

In a high-exposure example from earlier this month, the Pennsylvania Superior Court upheld an $815.8 million judgment against ExxonMobil, finding most of the energy manufacturing company’s key arguments were waived because they had not been properly preserved at the trial court level, including attacks on causation and expert testimony.
Judge Megan Sullivan filed a concurring/dissenting statement, the majority took too narrow a read of Exxon’s arguments when it came to questions of waiver.

“I would not conclude Exxon’s failure to employ the term ‘abuse of discretion,’ or related phrases, in the argument portion of its brief was fatal to its request for, or this court’s ability to conduct, meaningful appellate review,” she said. “In my view, Exxon has stated a colorable argument that the trial court’s denial of its post-trial motions on damages constituted an abuse of discretion.”

The ruling seems to highlight what some legal observers say is the state’s strict stance on waiver, rather than a recent shift towards stricter enforcement, which some observers noted in years past.

Lisa J. Rodriguez of Dilworth Paxson, in Philadelphia, shared that the state is among the most stringent jurisdictions on waiver.

While she didn’t identify a recent shift toward stricter enforcement in the state, Rodriguez noted that Pennsylvania has a longstanding approach regarding waiver that leaves little room for judges to exercise discretion.

“I think a judge would have a hard time finding the path forward to not find something waived given the statute,” Rodriguez said, noting that Pennsylvania is generally held out “as one of the most stringent when it comes to waiver,” and that some other states allow for a safety valve that gives more wiggle room to allow an appeal in certain circumstances.
She pointed to Pennsylvania Rule of Appellate Procedure (Pa. R.A.P.) 302, which establishes the rule that any issue not raised in the trial court is waived on appeal. According to Rodriguez, while other states have similar requirements, not every state is as stringent if mistakes are made and attempted to be corrected.

New Jersey was one example Rodriguez noted, saying courts in the Garden State are granted greater latitude to consider an unraised issue “in the interest of justice” if it amounts to “plain error.” She also shared that while the standard is still demanding, it leaves open a path to appellate review that isn’t available in Pennsylvania.

“I think that in New Jersey the general philosophy is that … you don’t need to have such a black and white rule. The judges should be afforded discretion, because you’re empowering these judges to make decisions,” Rodriguez said, noting that while it is helpful to have rules in place and that it is important that thing are done properly, judges are intelligent, experienced attorneys who have ascended to their position and shouldn’t be deprived their discretion in the interest of justice.

“I guess it makes it easier for a court if they don’t have to use their discretion, it’s a bright line rule,” Rodriguez said, noting that a bright line rule provides more consistency as it doesn’t rely on a judge’s discretion.

Preserving issues can sometimes be very difficult to do. In recent years, appellate counsel has become increasingly involved at the trial level. Rodriquez said that their presence can be beneficial as the attorneys can focus on preserving potential appellate issues in real time, easing the burden on trial counsel. She said that practice is becoming more common as verdicts grow, both in Pennsylvania and elsewhere.

“[T]he consequences of waiving issues can be so severe that I think it really has made clients think about that option in order to protect themselves,” she said. “I would say it’s the combination of the large verdicts and the history of waiver in Pennsylvania courts that have, in my view, driven that trend.”

Also, Maureen McBride of Lamb McErlane, in West Chester, noted that trial lawyers must preserve issues and file post-trial motions on tight deadlines, often before transcripts are available. As a result, arguments initially raised during trial frequently become more refined after counsel has access to the full record on appeal.

“Trial counsel must raise objections and frame issues in real time, followed by post-trial motions filed within 10 days—frequently before a transcript is even complete,” McBride said. “Under those conditions, it’s only natural that arguments raised in the heat of trial will evolve and mature once counsel has the benefit of a complete record on appeal.”

Robert M. Palumbos, chair of Duane Morris’ appellate division, agreed with Rodriguez’s assessment of Pennsylvania’s having a history of applying waiver more strictly, and said the repeated high, nuclear verdicts Philadelphia saw in recent years, has “made defendants much more careful, more aware of the potential for waiver, and frankly, more likely to bring in appellate counsel to help ensure that waiver doesn’t happen.”

Palumbos noted that Pennsylvania appellate courts historically have applied waiver more aggressively than their federal counterparts, particularly through Rule 1925, which requires appellants to identify the issues they intend to challenge on appeal so trial judges can address them in a targeted opinion.

As to why Pennsylvania courts have evolved to more prominently feature waiver as a deciding factor, Palumbos said others have suggested that one factor could be because the caseload in state court is so much greater than in federal court, and that sometimes Pennsylvania appellate courts turn to waiver to resolve cases quickly.

“[T]here’s just a practice in Pennsylvania where issues need to be preserved with a particularity,” which “sort of flows from the 1925 practice,” he said, noting there is no federal court equivalent.

Palumbos said his impression was that Pennsylvania courts had taken a more practical approach in recent years, applying waiver less frequently. He attributed that shift in part to amendments to Rule 1925 in 2007, 2014 and 2019, which clarified preservation requirements and reduced the likelihood of inadvertent waiver.

But, he said, some recent rulings in 2026 have made him rethink whether that trend will continue.

“My impression is that the Superior Court in particular has not applied waiver quite so strictly as it did in the past to 1925 statements. That’s part due to amendments to the Rule 1925 and in part due to, I think, how the Superior Court looks at practice under that rule. I think that carried over to some extent into other forms of waiver and issue preservation as well. But there have certainly been some big cases in 2026 where waiver featured prominently and I’m not sure at this point if that suggests trend back in that direction or not.”

Overall, practitioners agreed they prefer it when appellate decisions hinge on the merits of a case, rather than procedure. “I think that’s been good because it creates a situation where the courts are deciding issues on the merits rather than on waiver grounds, and as a general matter, I think that’s preferable,” Palumbos said. “We’d rather have our courts reaching the merits than looking for and finding waiver and deciding cases that way.”

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