HMS Legal Blog

Rule 1925 Remains a Waiver Trap

The Supreme Court’s recent decision in Berg v. Nationwide Mutual Insurance Co., __Pa. __, 6 A.3d 1002 (2010) (plurality opinion) serves notice that a majority of the Court continues to expect strict compliance with all of the very technical requirements of Pa. R.A.P. 1925(b)’s “concise statement of errors complained of on appeal” procedures.  Although the upshot of the Court’s five opinions was that under the egregious facts presented no waiver was found, the broader message is that, even after 2007 amendments intended to reduce the number of appeals dismissed on waiver grounds for Pa. R.A.P. 1925 technical violations, counsel needs to adhere to all of Rule 1925’s technical requirements, use extreme caution, and essentially treat compliance with the letter of Pa. R.A.P. 1925 in the same way that jurisdictional deadlines are treated.

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Check the Certified Trial Court Record for Omissions

Did you know that Pennsylvania appellate courts may find an issue waived where a document relevant to the issue is omitted from the original record certified by the trial court, even though the document is available to the appellate court in the reproduced record and there is no dispute that the document was admitted into evidence and relied on by the trial court?

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Justiciability of Pre-enforcement Challenge to Agency Regulations Reaffirmed

Revisiting the Arsenal Coal exception to the general rule that the exhaustion doctrine bars a challenge to administrative agency regulations until after the challenger is aggrieved by their application, the Supreme Court reaffirmed the availability of pre-enforcement review where the issue presented is ripe and the challenged regulations have an immediate impact on an industry such that the delay and uncertainty associated with enforcement and subsequent judicial review would cause hardship.  Bayada Nurses, Inc. v. Dept. of Labor and Industry, __Pa. __, ___A. 2d ___ (2010) (67 MAP 2008, decided November 17, 2010).

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Pennsylvania Standing Rule

Finding that an asbestos plaintiff defending a motion for summary judgment has standing to facially challenge the constitutionality of a liability-capping statute on dormant Commerce Clause and Equal Protection grounds, the Pennsylvania Supreme Court recently clarified the role of the “zone of interest” inquiry within the familiar “direct-immediate-substantial” test for standing. Johnson  v. American Standard, __Pa. __, 8 A. 3d 318 (2010).

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