THE COURTS
PART I. RULES OF APPELLATE PROCEDURE
[210 PA. CODE CH. 19]
Proposed Amendment to Rule 1925; Proposed Recommendation No. 62
[36 Pa.B. 5967]
[Saturday, September 30, 2006]The Appellate Court Procedural Rules Committee proposes to amend Pennsylvania Rule of Appellate Procedure 1925. The amendment is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court.
Proposed new material is bold while deleted material is bold and bracketed.
All communications in reference to the proposed amendment should be sent no later than October 31, 2006 to:
Dean R. Phillips, Chief Counsel
D. Alicia Hickok, Deputy Counsel
Appellate Court Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, PA 17055
or Fax to
717-795-2116
or E-Mail to
appellaterules@pacourts.usThe Explanatory Report which appears in connection with the proposed amendments has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rule nor will it be officially adopted or promulgated.
By the Appellate Court Procedural
Rules CommitteeHONORABLE THOMAS A. WALLITSCH,
Chair
Annex A
TITLE 210. APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
ARTICLE II. APPELLATE PROCEDURE
CHAPTER 19. PREPARATION AND TRANSMISSION OF RECORD AND RELATED MATTERS
RECORD ON APPEAL FROM LOWER COURT Rule 1925. Opinion in Support of Order.
(a) General rule.--Upon receipt of the notice of appeal, the judge who entered the order [appealed from] giving rise to the notice of appeal, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order, or for the rulings or other [matters] errors complained of, or shall specify in writing the specific place in the record where such reasons may be found.
If the appeal is based upon an order or ruling issued by a judge that was not the judge at trial, the trial judge may request that the judge who made the interim ruling draft a statement in accordance with the standards above to explain the reasons for his or her decision.
(b) Direction to file statement of [matters] errors complained of on appeal; instructions to the appellant and trial court.--
[The lower court forthwith] If the trial judge desires clarification of the errors complained of on appeal, the trial judge may enter an order directing the appellant to file of record in the [lower] trial court and serve on the trial judge a concise statement of the [matters] errors complained of on [the] appeal [no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of].
(1) Filing and Service. Appellant shall file of record the statement of errors complained of and concurrently shall serve the trial judge. Filing of record and service on the trial judge shall be in person or by mail as provided in Pa.R.A.P. 121(a) and shall be complete on mailing if appellant obtains a United States Postal Service form in compliance with the requirements set forth in Pa.R.A.P. 1112(c). Service on parties shall be concurrent with filing and shall be by any means of service specified under Pa.R.A.P. 121(c).
(2) Time for Filing and Service. The trial judge shall allow the appellant at least 21 days from the date of the order's entry on the docket for the filing and service of the statement of errors complained of on appeal. Upon application of the appellant and for good cause shown, the trial judge may enlarge the time period initially specified or permit a supplemental statement to be filed. In extraordinary circumstances, a trial judge may allow for the filing of a statement or supplemental statement nunc pro tunc.
(3) Contents of Order. The trial judge's order directing the filing and service of a statement of errors complained of on appeal shall specify:
(i) the date the statement of errors complained of shall be filed and served;
(ii) that the statement of errors complained of shall be filed of record;
(iii) that the statement of errors complained of shall be served on the trial judge pursuant to subparagraph (b)(1);
(iv) that any issue not properly included in a statement timely filed and served pursuant to subdivision (b) shall be deemed waived.
(4) Requirements; Waiver.
(i) The statement of errors complained of on appeal shall set forth only those errors for which the appellant intends to seek review. The trial judge shall not require the citation of authorities; however, appellant may choose to include pertinent authorities in the statement.
(ii) The statement shall briefly identify each ruling that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the trial judge.
(iii) Each ruling identified in that manner will be deemed to include every subsidiary issue fairly included therein; any rulings not included in the statement of errors complained of shall be deemed waived.
(iv) If the appellant cannot readily discern the basis for the trial judge's decision, he must preface the statement with an explanation as to why his statement of errors complained of has identified the errors in only general terms. In such a case, the generality of the statement of errors complained of will not be grounds for finding waiver.
(v) The trial judge shall not require appellant or appellee to file a brief, memorandum of law, or response as part of or in conjunction with the statement of errors complained of.
(c) Remand.
(1) Upon application of the appellant and for good cause shown, an appellate court may remand in either a civil or criminal case for clarification as to any questions of timeliness.
(2) Upon application of the appellant and for good cause shown, an appellate court may remand in a civil case for the filing nunc pro tunc of a statement of errors complained of on appeal or for amendment of a timely filed and served statement and for the preparation and filing of a corresponding opinion by the trial court.
(3) If an appellant in a criminal case was ordered to file a statement of errors complained of on appeal and failed to do so, upon application of the appellant and for good cause shown, the appellate court may remand for the filing of a statement of errors complained of on appeal nunc pro tunc and for the preparation and filing of a corresponding opinion by the trial court.
(4) In a criminal case, counsel may file of record and serve on the trial judge a statement of intent to file an Anders/McClendon brief in lieu of filing a statement of errors complained of. If, upon review of the Anders/McClendon brief, the appellate court believes that there are potentially meritorious issues for review, those issues will not be waived; instead, the appellate court may remand for the filing of a statement of errors complained of, a supplemental opinion pursuant to 1925(a), or both. The trial court may, but is not required to, replace appellant's counsel.
[(c)] (d) Opinions in errors on petition for allowance of appeal.--Upon receipt of notice of the filing of a petition for allowance of appeal under Rule 1112(b) (appeals by allowance), the appellate court below which entered the order sought to be reviewed, if the reasons for the order do not already appear of record, shall promptly file of record at least a brief statement, in the form of an opinion, of the reasons for the order.
Official Note: [Subdivisions (a) and (b) of this rule are based on former Supreme Court Rule 56 and eliminate the blanket requirement of the prior practice for a service of a statement of matters complained of. See also former Superior Court Rule 46 and former Commonwealth Court Rule 25. Subdivision (c) of this rule is intended to provide the Supreme Court and the parties with at least a brief informal memorandum of the reasons for the decision of the appellate court below. See In re Harrison Square Inc., 470 Pa. 246, 368 A.2d 285 (1977).]
Subdivision (a) This subdivision permits the trial judge to ask for a statement of errors complained of on appeal if the record is inadequate and the trial judge needs to clarify the errors complained of. The revisions clarify that a trial judge may refer the 1925(a) opinion to another judge if the trial judge did not issue the ruling in question. There may be times when more than one judge will issue 1925(a) opinions. The time period for transmission of the record is specified in Pa.R.A.P. 1931 and is unaffected by these amendments.
Subdivision (b)(1) This subdivision maintains the requirement that the statement be both filed of record in the lower court and served on the trial judge. Service on the trial judge may be accomplished by mail or by personal service. The date of mailing will be considered the date of service upon the trial judge only if counsel obtains a United States Postal Service form from which the date of mailing can be verified, as specified in Pa.R.A.P. 1112(c). Counsel is advised to retain date-stamped copies of the postal forms (or pleadings if served by hand), in case questions arise later as to whether the statement was timely served on the trial judge.
Subdivision (b)(2) This subdivision extends the time period for drafting the statement from 14 days to at least 21 days, with the trial court permitted to enlarge the time period or to allow the filing of a supplemental statement upon good cause shown. In Commonwealth v. Mitchell, 2006 Pa. LEXIS 1286 (July 19, 2006), the Court expressly observed that a statement filed ''after several extensions of time'' was timely. An enlargement of time upon timely application might be warranted if, for example, there was a serious delay in the transcription of the notes of testimony or in the delivery of the order to appellate counsel. A trial court should also enlarge the time or allow for a supplemental statement when new counsel is retained or appointed. A supplemental statement may also be appropriate when the ruling challenged was so non-specific--e.g., ''Motion Denied''--that counsel could not be sufficiently definite in his or her initial 1925(b) statement.
A nunc pro tunc statement will generally be allowed only when there has been a breakdown in the process constituting extraordinary circumstances. See, e.g., In re Canvass of Absentee Ballots of Nov. 4, 2003 Gen. Election, 577 Pa. 231, 248-49, 843 A.2d 1223, 1234 (Pa. 2004) (''We have held that fraud or the wrongful or negligent act of a court official may be a proper reason for holding that a statutory appeal period does not run and that the wrong may be corrected by means of a petition filed nunc pro tunc.'') Courts have also allowed nunc pro tunc relief when ''non-negligent circumstances, either as they relate to appellant or his counsel'' occasion delay. McKeown v. Bailey, 1999 PA Super. 135, ¶ 6, 731 A.2d 628, 630 (Pa. Super. 1999). However, even when there is a breakdown in the process, the appellant must attempt to remedy it within a ''very short duration'' of time. Id.; Amicone v. Rok, 2003 PA Super. 500, 839 A.2d 1109 (Pa. Super. 2003) (recognizing a breakdown in process, but finding the delay too long to justify nunc pro tunc relief).
Subdivision (b)(3) This subdivision specifies what a trial judge must advise appellants when ordering a statement of errors complained of on appeal.
Subdivision (b)(4) This subdivision sets forth the parameters for the statement of errors complained of on appeal and should aid counsel in complying with the concise-yet-sufficiently-detailed requirement by allowing counsel to rely on the fact that subsidiary issues will be deemed included if the overarching issue is identified. This provision has been taken from the United States Supreme Court rules. See Sup. Ct. R. 14.1. It recognizes that there may be times that an appellant cannot be specific, because of the non-specificity of the ruling complained of on appeal. In such instances, appellants are encouraged to seek leave to file a supplemental 1925(b) statement to clarify their position in response to the trial court's more specific 1925(a) opinion. This subsection also allows--but does not require--appellant to state the authority upon which it challenges the ruling in question, but it expressly states that a 1925(b) statement is not a brief and appellant shall not file a brief with the 1925(b) statement.
Subparagraph (c)(1) applies to both civil and criminal cases and allows an appellate court to seek additional information--whether supplementation of the record or additional briefing-if it is not apparent whether an initial or supplemental statement of errors appealed from was timely filed or served.
Subparagraph (c)(2) allows an appellate court to remand a civil case to allow an initial or supplemental statement of errors appealed from and/or a supplemental opinion.
Subparagraph (c)(3) allows an appellate court to remand in criminal cases when the appellant has failed to respond to an order to file a statement of errors complained of on appeal. Currently, the appeal must be quashed if no timely statement of errors appealed from is filed or served; however, because the failure to file and serve a timely statement is a failure to perfect the appeal, it is presumptively prejudicial and ''clear'' ineffectiveness. See, e.g., Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 795 (Pa. 2005); Commonwealth v. West, 2005 Pa. Super. 269, 880 A.2d 654 (Pa. Super. 2005). Because of the clear ineffectiveness, direct appeal rights are restored through a post-conviction relief process. Id. However, the judicial resources expended and delay occasioned by such a process may prejudice either the defendant or the Commonwealth. Accordingly, the proposed amendments allow the court to determine on direct appeal whether there is an instance of clear ineffectiveness, and, if so, to remand for appellant to file a statement of errors complained of and the trial judge to file a corresponding 1925(a) opinion. This is similar to the circumstances in Commonwealth v. Mitchell, 2006 Pa. LEXIS 1286 (July 19, 2006), where the appellant originally instructed counsel not to raise any issues on appeal, and, although the trial court requested a statement of errors, counsel did not file one because the appellant directed him not to. When the appellant expressed a desire to revoke his waiver, upon application, the Supreme Court remanded and restored his direct appeal rights.
Subparagraph (c)(4) This subdivision clarifies the special expectations and duties of a criminal lawyer. Even lawyers seeking to withdraw pursuant to the procedures set forth in Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (Pa. 1981) are obligated to comply with all rules, including the filing of a 1925(b) statement. See Commonwealth v. Myers, 2006 Pa. Super. 58, 897 A.2d 493 (Pa. Super. Mar. 22, 2006); Commonwealth v. Ladamus, 2006 PA Super. 65, 896 A.2d 592 (Pa. Super. Mar. 29, 2006). However, because a lawyer will not file an Anders/McClendon brief without concluding that there are no non-frivolous issues to raise on appeal, this amendment allows a lawyer to file, in lieu of a statement of errors, a statement that no errors have been raised because the lawyer is (or intends to be) seeking to withdraw under Anders/McClendon. At that point, the appellate court will remand only if it finds potentially non-frivolous issues during its constitutionally-required review of the record.
Subparagraph (d) was formerly (c). The text has not been revised.
EXPLANATORY REPORT This Explanatory Report is not part of the rule or note. It is intended to explain to the bench and bar the considerations that have informed the proposed rule change. This Recommendation, which is published for comment, proposes amendments to Pa.R.A.P. 1925 and its note that address certain issues arising from its application, especially issues pertaining to waiver. The following is a discussion of the purpose of Rule 1925, its application by the appellate courts, and issues that have arisen regarding application of the rule--including a brief discussion of the waiver doctrine. The Committee believes that the proposed amendments to the rule balance the interests of both bench and bar.
Rule 1925(a)
Rule 1925(a) requires trial court judges to prepare an opinion or otherwise state the reasons for their ruling. This is to aid the appellate courts in evaluating the claims of error raised on appeal. While other jurisdictions do not require trial court opinions, because Pennsylvania's appellate courts lead the nation in the number of appeals relative to the number of judges, the preparation of trial court opinions is deemed necessary to assist the appellate process.
The first paragraph of Rule 1925(a) remains the same, while the 2006 proposed amendment would clarify that if a complex issue was decided pre-trial by a judge different from the trial judge, the trial judge may request that the other judge prepare an opinion regarding that ruling. Such a referral is not necessary in every case or even in most cases where another judge has made a pre-trial ruling, and a request is not mandatory upon the other judge to prepare such an opinion.
Rule 1925(b)
Waiver on Appeal for Non-Compliance with the Timing, Filing and Service Requirements
Because trial judges are required to write opinions under Rule 1925(a) in a relatively short time, see Pa.R.A.P. 1931(a) and (b), the trial judges have the option under Rule 1925(b) to request the appellant to file what is currently called a ''statement of matters complained of on appeal.'' The recommendation proposes to change ''matters'' to ''errors'' in order to clarify that the purpose of the Rule 1925(b) statement is to identify the bases for the appeal. Under both the existing rule and the recommendation, a trial judge does not have to request a Rule 1925(b) statement, but may do so to clarify the issues to prepare the Rule 1925(a) opinion. For example, in criminal cases, parties may appeal without filing post-sentence motions, and the trial judge may wish to ascertain what allegations of error appellant intends to raise on appeal. Likewise, if there have been many issues raised in post-sentence motions in criminal cases or post-verdict motions in civil cases, the trial judge may wish to ascertain which of those issues will be pursued on appeal. The trial judge should not be required to address issues in a Rule 1925(a) opinion that appellant knows will not be raised in the appellate court.
Because of the importance of the Rule 1925(a) opinion to the appellate courts, and the importance of a Rule 1925(b) statement to assist the trial court in preparing a Rule 1925(a) statement, cases from the Pennsylvania Supreme Court have underlined the necessity for appellants to follow the rules and file and serve on the trial judge timely Rule 1925(b) statements when ordered.
In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (Pa. 1998), the Pennsylvania Supreme Court held that failure to file a Rule 1925(b) statement when requested to do so will result in waiver. See also Commonwealth v. Butler, 571 Pa. 441, 812 A.2d 631 (2002) (applying Lord to a PCRA). Subsequent to Lord, some Superior Court panels declined to find waiver when the untimeliness of the Rule 1925(b) statement was determined not to have impeded appellate review, in that the trial court addressed those issues in its Rule 1925(a) opinion. See Commonwealth v. Alsop, 2002 Pa. Super. 146, 799 A.2d 129 (Pa. Super. 2002); Commonwealth v. Ortiz, 2000 Pa. Super. 13, 745 A.2d 662 (Pa. Super. 2002). However, in companion cases decided in 2005, Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (Pa. 2005) and Commonwealth v. Schofield, 585 Pa. 389, 888 A.2d 771 (Pa. 2005), the Supreme Court affirmed the bright line waiver rule in Lord and expressly disapproved the rulings in Alsop and Ortiz, thus denying broad discretion to appellate court judges to accept late-filed or incomplete Rule 1925(b) statements. Schofield also held that the formalities of the rule must be followed--including the requirements that the 1925(b) statement be filed of record and served on the trial judge and that appellant must follow through to make sure that the filings are part of the certified record on appeal (see Pa.R.A.P. 1931 and Explanatory Comment--2004). If appellants fail to follow these requirements, they will have waived the issues raised on appeal.
However, the Supreme Court also recognized in Castillo that under certain circumstances an appellant could properly seek relief from the literal application of Rule 1925(b). Castillo, 585 Pa. at 400, 403 n.6, 888 A.2d at 778, 780 n.6 (not disputing the Commonwealth's contention that the burden of Rule 1925(b) is minimal because appellants ''may proactively seek from the trial court an extension of time to file or the ability to amend a statement if needed'' and that remand to permit amendment of a Rule 1925(b) statement as in Commonwealth v. Moran, 2003 Pa. Super. 166, 823 A.2d 923 (Pa. Super. 2003) was ''not inconsistent with'' Lord or Butler.)
The Pennsylvania Supreme Court has made it clear that the proper functioning of the appellate process requires that a trial judge has sufficient information to prepare his or her Rule 1925(a) opinions. While exceptions may be made when the interests of justice require, an unfettered exercise of discretion would be inappropriate because it could lead to ''unsupportable distinctions between similarly situated litigants.'' Castillo, 585 Pa. at 402, 888 A.2d at 779.
The 2006 revisions to Rule 1925(b) are designed to make it clear that the requirements of the rule are mandatory and will result in waiver if not strictly followed. Revisions have been made to ensure that this is clear to practitioners. At the same time, following Castillo, the revisions are designed to amplify and standardize those situations where the interests of justice require some flexibility in the application of the rule.
There has been considerable concern among practicing attorneys about the application of the rule and the risks of waiver. The revisions have been drafted after considering input from many individual attorneys as well as the organized bar and they have attempted to balance the need for a uniform application of the rule and the ability to provide relief when circumstances require. While the new rule attempts to provide appellants and courts with the means to avoid unjust waivers, it does not provide courts with unfettered discretion to excuse the consequences of non-compliance.
Waiver on Appeal for Non-Conciseness or Vagueness
The 2006 amendments also attempt to address the concern of the Bar raised by cases in which courts found waiver: (a) because the Rule 1925(b) statement is too vague; or (b) because the Rule 1925(b) statement is so repetitive and voluminous that it does not enable the trial judge to focus on issues that are likely to be raised on appeal. Opinions of the intermediate appellate courts have condemned both practices. See, e.g., Lineberger v. Wyeth, 2006 PA Super. 35, ¶ 14, 894 A.2d 141, 154 (Pa. Super. 2006); Kanter v. Epstein, 2004 Pa. Super. 470, 866 A.2d 394, 401 (Pa. Super. 2004), appeal denied, __ Pa. ___, 880 A.2d 1239 (Pa. 2005), cert. denied sub nom Gadon & Rosen, P.C. v. Kanter, 2006 U.S. LEXIS 76 (Jan. 9, 2006).
While conciseness and vagueness are very case-specific inquiries, certain observations may be helpful. First, the 1925(b) statement is only the first step in framing the issues to be raised on appeal, and the requirements of Pa.R.A.P. 2116 are even more stringent. Thus, the 1925(b) statement of errors complained of on appeal should be viewed as an initial winnowing. Second, when appellate courts have been critical of sparse or vague 1925(b) statements, they have not criticized the number of issues raised but the paucity of useful information contained in the statement. The more carefully the appellant frames the 1925(b) statement, the more likely it will be that the trial judge will be able to articulate the rationale underlying the decision and provide a basis for counsel to determine the advisability of appealing that issue. Thus, counsel should begin the winnowing process at the 1925(b) stage and should articulate specific rulings with which he/she takes issue and why he/she takes issue with them (note, for example, that the Lineberger court found the omission of any reference to the Nanty-Glo rule from the 1925(b) statement to be a waiver).
There is no adverse consequence to an appellant who, upon reviewing a trial court's 1925(a) statement, decides to limit the scope or number of questions to raise on appeal--or even to withdraw the appeal altogether. In the United States Supreme Court, the standard has been explained thus: the questions should be ''expressed concisely in relation to the circumstances of the case, without unnecessary detail. The questions should be short and should not be argumentative or repetitive.'' Sup. Ct. R. 14.1.
Waiver on Appeal in Criminal Cases
In a criminal case, there are additional considerations that must be addressed, some of which are constitutional. Accordingly, while the courts have held that the only remedy a civil appellant can receive is whatever monetary recovery can be had upon a malpractice suit, a criminal appellant can have his/her appeal rights restored when counsel fails to comply with the 1925(b) order, because the failure to perfect an appeal is ''clear'' ineffectiveness. See, e.g., Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 795 (Pa. 2005); Commonwealth v. West, 2005 PA Super. 269, 880 A.2d 654 (Pa. Super. 2005). The proposed rule allows the appellate court to remand upon such finding of ''clear ineffectiveness'' rather than require the appeal to be quashed and then reinstated through a post-conviction relief proceeding.
Further, appellate courts must ensure that an appellant's constitutional right to appeal has been satisfied by ensuring that a lawyer be allowed to withdraw from representation only if there are no non-frivolous issues for appeal. A lawyer seeking to withdraw must therefore follow the procedures set forth in Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (Pa. 1981). Appellate courts have held that during the period the lawyer is still representing the appellant, he or she has an obligation to comply with all rules, including the filing of a 1925(b) statement. See Commonwealth v. Myers, 2006 Pa. Super. 58, 897 A.2d 493 (Pa. Super. Mar. 22, 2006); Commonwealth v. Ladamus, 2006 Pa. Super. 65, 896 A.2d 592 (Pa. Super. Mar. 29, 2006). As noted above, if a lawyer is seeking to withdraw, he or she has concluded that there are no non-frivolous issues to be raised. It follows, then, that the lawyer cannot articulate issues for the purpose of a 1925(b) opinion. For this reason, the amended rule will allow a lawyer to file a statement of errors complained of on appeal (in compliance with the rules of timeliness, filing, and service) that indicates that the lawyer intends to file an Anders/McClendon brief. At the same time, the appellate court is still constitutionally required to assure itself that there are no non-frivolous issues to be raised. If, during that review, the appellate court concludes that there are potentially non-frivolous issues to be raised, it may remand for a statement of errors complained of and a corresponding trial court opinion addressing those issues.
[Pa.B. Doc. No. 06-1900. Filed for public inspection September 29, 2006, 9:00 a.m.]
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